Vulnerable Clients: supported decision making

• Solely Adults with Incapacity

• Guardianship, Power of Attorney, Wills & Trusts

• Trust Management

Caritas POAs 2013

Client Type

DementiaLearning DisabilityMental Health ConditionForward Planning

Introduction

• Adults with Incapacity (Scotland) Act 2000

• Focus on personalised care• Personalised legal services

Main resources under the Act

• Joint bank accounts

• Powers of Attorney • Access to Funds

• Guardianship & Intervention Orders

Least restrictive

Most restrictive

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Issues for vulnerable clients

• May be unable to deal with large sums of money or make sound decisions re welfare

• Inheriting a sum of money may affect means tested benefits

• Exposed to exploitation by third parties

5 General Principles

1. Benefit2. Minimum Intervention3. Wishes of the adult4. Consultation5. Encourage exercise of capacity

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Power of Attorney

• Continuing and Welfare Power of Attorney

• Individual • Age 16 or over• Must have full legal capacity

What is “Incapacity”?

• Acting• Making• Communicating• Understanding• Retaining the memory of DECISIONS

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When is it helpful/necessary?

• To prepare for time if and when unable to make decisions

• Useful at diagnosis stage of progressive illness as can exercise control over future

• Where mental illness fluctuates can be used to cover periods of time person is unable to manage

Advantages

• Don’t need Court or OPG consent• Informal• Quick to prepare• Can be tailored to suit individual

requirements• CHOICE & CONTROL

The document

• No prescribed format• Must be written and signed by

granter• All powers must be specified• Specify intended to continue upon

incapacity• Solicitor/advocate/medical

practitioner to certify legal capacity and no undue influence

Welfare provision

• Possibly link in to advance directive i.e to do anything authorised by the Advanced Directive by me…dated….

• In light of SDS - Specific authorisation for Attorney to accept direct payments?

• Check existing POAs and read powers• Talk about wishes

Supervision

• Central Register of all POAs • Abuse of POA

– Financial Attorneys : OPG– Welfare Attorneys: MWC

• Duty of care– Diligence and skill of a prudent person

in the management of their own affairs

Registration

• EPOAR

POA Questions

Power of Attorney v Guardianship

Guardianship

• Most restrictive option• Powers – welfare and financial• Lack of capacity

Caritas Guardianships 2013

Guardianships

DementiaLearning DisabilityMental Health ConditionStroke

Reports – basis of application

• Adults with mental disorder– Two Medical Practitioner Reports– Mental Health Officer Report

Process

• Must be lodged in Court within 30 days of first Report

• Joint or substitute appointments may be sought

• Specified period of appointment

Comparison

Power of Attorney• Capacity• Choice & Control• Welfare powers• Financial powers• Informal• Private Fee

Guardianship• Lack of capacity• Restrictive• Welfare Powers• Financial Powers• Sheriff Court• LEGAL AID!

Guardianship Questions

Parents of a young vulnerable adult

• Highlight importance of Trusts• Help plan for adult child’s future

MYTH - “If you have a disabled child you are better to leave

them out of your Will”

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Advantages

• Good way of managing money on behalf of someone who is not able to deal with large sums of money

• Lessens prospect of vulnerable person being unduly influenced by other people

• Money is ring fenced from benefits calculations

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Available to advise on :-

• Schedule 8 reports (Guardianship)• The cost of long term care• Funding long term care• Appealing against a decision on NHS

Continuing Care• Safeguarding• Self Directed Support

Under the shade you flourishPersonalised legal services for the protection of vulnerable groups