If it is believed that someone is abusing an adult either with regard to welfare issues or misuse of the adult’s funds, various bodies have obligations to investigate such abuse, and there are procedures under the legislation for resolving these issues. It depends on the nature of the abuse and the legal status of the alleged abuser as to which body has a duty to investigate.
Access to funds
This is a process where someone may apply to the Public Guardian to access the funds of an adult. This procedure is generally used where limited funds are required for limited appropriate purposes.
Guardians are required to prepare annual accounts of their dealing with the Adults estate. These accounts must be submitted to the Public Guardian for scrutiny.
This is the word used in the legislation to refer to a person who is not able to look after his or her affairs.
Measures taken by a person anticipating their future incapacity – the common measures being appointing an attorney and signing an advance directive or advance statement – often called “living wills.”
Decisions made by parties as to someone’s incapacity can be appealed to the local Sheriff. If the Sheriff has made such a decision then that can be appealed to the Sheriff Principal.
Someone appointed voluntarily by somebody to have powers to deal with the appointer’s affairs.
The legal ability to look after your own affairs. All adults are assumed to have legal capacity unless shown otherwise.
Caution (pronounced Kayshun)
A sum of money effectively an insurance which guardians may have to pay into court to ensure a guardianship application is granted.
Codes of Practice
There are a number of codes of practice in place setting best practice for Guardians, Attorneys and others affected by the Adults With Incapacity (Scotland) Act 2000.
This is a person approved by the Department of Work and Pensions to receive and deal with limited monies such as state benefits or pensions payable to an incapacitated person. There is an application process involving an interview for a person to become an appointee. This process is generally used when there are limited funds involved.
Death of Adult
On the death of the adult powers of guardians and appointees under intervention orders and powers of attorney automatically terminate.
Duty of trust owed by one person to another e.g. a guardian to an adult. The guardian must act properly and be seen to act properly and must act in the best interests of the adult. A guardian must avoid conflict between his or her own interests and the interests of the adult. The fiduciary duty would extend to a duty of confidentiality.
Where a guardian has financial powers, an inventory of the adult’s estate will normally have to be submitted to the Public Guardian along with a management plan for the management realisation and investment of the adults estate along with an intimation of how the financial powers will be applied to take account of the adult’s needs. The guardian’s ability to exercise his or her financial powers is limited until the Public Guardian approves the management plan. The Public guardian has powers to vary and review management plans. In addition financial guardians must submit annual accounts to the Public Guardian for approval.
Financial guardians may my gifts out of an adult’s estate but requires the consent of the public guardian to making them. Gifts will generally be approved if it might reasonably have been expected that the adult would have made such gifts if he or she had capacity.
The Adults with Incapacity (Scotland) Act 2000 sets out five general principles which lie at the heart of the law relating to incapacity and how the affairs of incapacitated persons should be dealt with.
In summary the five principles are:-
- There must be no intervention in the affairs of the adult unless the intervention will benefit the adult.
- Any intervention in the adults affairs must be the minimum necessary
- Account must be taken of the adults wishes and feelings
- Account must be taken of the wishes of other categories of person eg nearest relative
- The adult must be encouraged to exercise what skills he or she has concerning his or her affairs.
This is a person appointed by a court to be deal with the affairs of an adult. The powers a guardian has will be as specified in the court decree making the appointment.
The Adults with Incapacity (Scotland) Act does set out situations where certain parties may make health care decisions on behalf of an adult.
This is land or buildings as opposed to property such as money. Appointees under Intervention orders can have powers over such property and financial guardians do.
The state of an adult unable to look after his or her affairs. Incapacity can be caused by mental disorder or inability to communicate by reason of physical disability. A person is incapable if the person is incapable of acting, making decisions, communicating decisions, understanding decisions, or retaining memory of decisions.
Sometimes when incapacity arises informal arrangements are put in place by relatives or friends to deal with issues. For example third parties may allow accounts to be operated not by the incapacitated account holder. These arrangements are tending to die out now with organisations adopting tighter controls. Such arrangements in any event are fraught with difficulty and not to be recommended even if they can be set up.
A person appointed by a court to intervene in a specific way in the affairs of an adult.
An order granted by a court to a party to intervene in the affairs of an adult for a particular purpose or series of purposes. The person appointed may only use the powers granted in the order.
The word used to mean to transact. Intromitting with the adults affairs means dealing with them.
A financial guardian may invest the adult’s estate subject to rules of prudence.
Each local authority has a statutory duty to supervise all guardians with welfare powers. Authorities have significant further rights and duties in the field of incapacity.
A plan required from a guardian by the Public Guardian indicating how the guardian intends to deal with the property of the adult. The plan requires to be approved by the Public Guardian before implementation.
Mental Health Officer
This is a local authority official with powers under the Mental Health Scotland Act. In addition to powers and duties under that act these officers now require to provide a report to court where welfare powers are sought in a guardianship application.
Mental Welfare Commission
This public body plays a significant role in protecting the interests of people with mental disorders. It has a particular role to play with regard to detained patients.
Doctors have significant roles in the incapacity regulations. As a rule incapacity must be proved by medical certificates but there are differing rules depending on the cause of the incapacity.
The Adults With Incapacity Act requires that in certain circumstances the wishes of the nearest relative to the adult must be taken into account where it is reasonably practical so to do.
A legal document whereby a person with capacity appoints someone as his or her “attorney” – giving them powers to deal with their affairs for them should incapacity arise or in certain circumstances.
The Public Guardian is the official responsible for supervising the actions of Guardians appointed by courts under the Adults With Incapacity (Scotland) Act.
The Public Guardian is based in Falkirk and provides a range of advice and guidance to guardians. The Public Guardian is also able to investigate concerns where the property or financial affairs of an adult appear to be at risk.
The Sheriff and the Public Guardian have various powers to recall remove or replace guardians.
With every application to court for Guardianship or Intervention Orders various reports will have to be submitted. The type of reports needed, and who will submit them, will vary depending on the nature of the powers sought and the condition of the adult. In every case two medical reports will be required.
Guardians may resign provided there is continuity provided by a substitute guardian or it can be shown a guardianship is no longer appropriate.
A judge appointed to a local court – there are many local courts throughout Scotland. The Sheriff has extensive duties and powers under the Adults With Incapacity Scotland Act.
Those powers granted in a guardianship order or power of attorney which specifically relate to the personal welfare of the adult rather than to finance or property.
The name given to a party authorised under the Access to Funds procedure to use the adult’s funds.