Working with the Adults with Incapacity (Scotland) Act with the Adults...Who is this guidance for? This guidance has been developed to support managers and staff working in registered

Work

ing

with the

Ad

ults w

ith Incap

acity

(Scotland

) A

ct

Information and guidancefor people working in adult care settings

Who is this guidance for? 2

Why have we produced this guidance? 2

Does this guidance cover financial matters? 3

What is guardianship and why do you need

to know about it? 3

Who is welfare guardianship used for? 4

When does someone apply for guardianship? 4

What kind of powers can a guardian have? 5

How long does a guardianship order last? 5

What are the legal functions and duties of

a guardian? 6

Can more than one person be appointed

guardian? 7

Who else might be involved in guardianship? 7

Can guardians be given powers to consent

to medical treatment? 8

What do care providers need to know? 8

What powers can be delegated to the

care provider? 9

What is a power of attorney? 10

When does a power of attorney come

into effect? 10

How long does a power of attorney last? 11

What authority does the welfare attorney

have? 11

What are the benefits of power of attorney

for people in your care? 12

Conte

nts

What are the functions and duties of the

local authority? 13

What other parts of the Act should I be

aware of? 14

What is incapacity and what should care

staff know about it? 15

What are the general principles on which

the Act is based? 16

What is the Office of the Public Guardian? 21

What is the Mental Welfare Commission

for Scotland? 21

Appendix 1: Glossary of terms 22

Appendix 2: Guardianship’s Checklist

for Resident’s File 23

Appendix 3: Other useful contacts 24

Appendix 4: Other reading 24

Who is this guidance for?

This guidance has beendeveloped to supportmanagers and staff workingin registered services forpeople with mental illness(including dementia),learning disability and othermental disorders in Scotland.It is for anyone employed incaring for an individual who,because that person is notcapable of making keydecisions about his or herown health and welfare, hasbecome subject to the Adultswith Incapacity (Scotland)Act 2000. The MentalWelfare Commission (MWC)has legal duties in relation to safeguarding the rights of people who are subject tothe welfare provisions of theAct. Our guidance, therefore,focuses on issues relating towelfare guardianship andwelfare powers of attorneyin care homes and otherregistered care settings.While we do discuss someareas of financial decision-making, this is only as far asthese may have a bearing onthe welfare of an individual.

Why have we produced

this guidance?

Through our visits to peopleon guardianship and calls toour advice and informationline, we have become awareof the need for clarity onroles and responsibilitiesregarding the use of welfarepowers in care settings.Our visiting programme hasalso highlighted the need for improved record keepingwhere individuals are subjectto welfare powers under theAct. This guidance aims toanswer these two needs byproviding clarification on therole of welfare guardians anda checklist of informationthat we would expect careproviders to maintain.

Where a person is subject to the Adults with IncapacityAct (AWI), other people willbe given legal authority tomake decisions or takeaction on his or her behalf.They could be authorised tomake decisions on a widerange of welfare or personalcare issues, from where aperson lives, to whom he orshe is allowed to spend timewith. The law also allowsthese authorised individuals(welfare attorneys or welfareguardians) to delegatedecision-making power to

care providers. We think it isimportant for managers andtheir staff to know:

• Who in their care is subjectto the Act.

• To whom powers havebeen granted.

• The extent of thesearrangements.

• The length of time forwhich the authority lasts.

• The powers which havebeen delegated under the Act.

Your local authority has anumber of statutory dutiesunder the AWI Act. Theseinclude supervising privateguardians and in somecases acting as guardian.The court may also orderthat they supervise a welfareattorney. In respect ofguardianship and welfareattorneys, you need to knowwho is carrying out theseduties in relation to adults in your care. Any concernsyou or other members of thecare team might have canthen be properly addressedto the person responsible.

2

Care providers who requirefurther information andsupport to resolve difficultwelfare issues relating to theAWI Act can contact ouradvice and information lineon 0131 222 6111. OtherAWI information resourcesare also available from ourwebsite www.mwcscot.org.uk.

Does this guidance cover

financial matters?

This guide is concernedmainly with the welfareprovisions of the AWI Actalthough some basicterminology relating tofinancial management underthe Act is included in theglossary. Guardianship andpowers of attorney may alsobe granted in respect of anadult’s property and/orfinances. For informationabout financial provisionsplease contact the Office ofthe Public Guardian (OPG)who can provide informationand advice on these matters.(See Appendix 3 for contactinformation.)

What is guardianship and

why do you need to know

about it?

Guardianship under the AWIAct is a legal mechanismthat allows relatives, carers,or other parties, such aslocal authorities, to makecertain decisions or takecertain actions regarding thewelfare or financial affairs ofadults who lack capacity tomake these decisionsthemselves. Adults includeanyone over the age of 16.

One of the primary uses ofguardianship under the AWIAct is to authorise not justwhere a person shouldreside, but also the care heor she should receive, andhow these are delivered.The powers granted relate tothose areas of an adult’s lifein which he or she lacks thecapacity to make decisionsor take actions which needto be made or taken tosafeguard the person’s rights and protect his or herwelfare. It is important for thecare provider to know whatpowers have been granted.A copy of the powersgranted should be obtainedfrom the guardian, the localauthority or the Office for the Public Guardian. Theseshould be kept on file.

3

Who is welfare

guardianship used for?

It is estimated that there areupwards of 100,000 adultswith some impairment ofcapacity, due to dementia,learning disability or othercause, living in Scotland.The majority of these peoplereceive care from Scotland’smany and diverse careproviders, either in formalcommunity care settings,or from informal carers orrelatives, most without anyspecified legal authority. Theuse of welfare guardianshipas well as welfare attorneyshas risen quite sharply sincethe introduction of the Act.In the first three years sincethe introduction of the AWIAct in 2002 there were, intotal, a little over 1,000applications granted forwelfare guardianship. Its use is continuing to riseconsiderably each year as is the registration of welfarepowers of attorney. In theyear from April 2006 toMarch 2007 there werenearly 1000 applications for welfare guardianshipapproved. The trend showsno sign of abating and it is increasingly likely thatsomeone in your care will be subject to welfare

guardianship, if this is notthe case already.

The majority of peoplesubject to welfareguardianship have someform of dementia. It isestimated that there arenearly 17,000 people withdementia who are resident in care homes. The secondmost common use forwelfare guardianship is forindividuals whose lack ofcapacity is due to a learningdisability. Approximately2,600 people with a learningdisability and another 1,000people with mental illnessare presently in care homes.The potential for substantialfurther growth in the use of the AWI Act for peoplewho lack some capacity is another reason whymanagers and staff shouldfamiliarise themselves withthe basics of the legislation.

When does someone

apply for guardianship?

If an adult loses somecapacity to make decisionsfor themselves, a relative,a carer, a local authority, orindeed any other interestedparty, may make anapplication to the court to be their guardian. Theapplication is based on twodoctors’ reports and a reportby a mental health officer (inwelfare guardianship), or areport by another relevantprofessional (usually anaccountant) in financial onlyguardianship. The applicationmight be made because theperson is struggling to makedecisions, or because he orshe cannot safeguard theirfinances or their property.It may be because there isconflict between the adultand their carers about whatcare they need, or wherethey need to live. It maysimply be because thecarers or relatives want tohave a central role in all thedecisions being made for the person who lackscapacity. In some situationsguardianship is soughtprimarily to make financialarrangements, and welfarepowers are decided at thesame time.

4

Whatever the reasons thattrigger a guardianship, it isimportant for all concernedin the care of the personwho lacks capacity that theyknow about their role andresponsibilities under the Act.

Copies of application formsfor guardianship can bedownloaded from theScottish Executive website.

What kind of powers

can a guardian have?

A guardian may have thelegal authority to make anumber of decisions onbehalf of an adult who lacksthe capacity to make thesedecisions for him or herself.The decisions they canmake will be specified in theGuardianship Order and itshould not be presumed thatthe guardian has the powerto make all decisionsregarding the care of aperson. (A welfare attorney,which is discussed below,can have the same range ofpowers, the difference beingthey are granted by a personwhen they have capacity tounderstand the implications ofgranting a welfare attorney.)

It is, therefore, important thatcare providers know whatkinds of powers theguardian has. It is especiallyimportant that they knowwhether it is a welfare only,or financial only order, orwhether the guardian hasboth welfare and financialpowers. For instance, if aguardian has only financialpowers, they may have nolegal authority to makedecisions about welfarematters. This alone shouldnot preclude them from

being involved in thesedecisions, in the way thatyou would ordinarily involveother carers and relatives.

How long does a

guardianship order last?

A guardianship order may be time limited. Initially the default period forguardianship orders is threeyears, although many arenow granted for an indefiniteperiod. A care providershould ask to see how longthe power of attorney orguardianship lasts andshould note when/if thepowers cease. The power of attorney, as discussedbelow, is not exercised untilthe attorney believes that the adult who granted thepowers no longer has thecapacity to make thesedecisions or take theseactions him or herself.

5It should not be presumed

that the guardian has the

power to make all decisions

regarding care.

What are the legal

functions and duties

of a guardian?

Most importantly, a welfareguardian, the same asanyone else exercisingfunctions under the Act (andthis will include managersand staff of registeredservices at times), mustensure that his or heractions are in accordancewith the general principles of the Act (see pages 17-21).These are discussed indetail below.

Guardians have a number of functions and duties.Many of these will relate to the powers specified inthe Guardianship Order.Their powers may include:

• Power to deal with suchparticular matters inrelation to the property,financial affairs or personalwelfare of the adult as maybe specified in the order.

• Power to manage theproperty or financial affairsof the adult, or such partsof them as may bespecified in an order.

• Power to authorise theadult to carry out suchtransactions or categoriesof transactions as theguardian may specify.

6

• Power to act as the adult’slegal representative inrelation to any matterwithin the scope of thepowers granted.

• Power to pursue or defendan action including onenullifying a marriage,separation or divorce in the name of the adult.

• Power to arrange for someor all of his or her functionsto be exercised by one ormore persons acting on hisor her behalf (very often acare provider). However,the guardian cannotsurrender or transfer anypart of his or her functionsto another person. In otherwords, the guardianremains responsible forhow these functions areexercised.

• The duty to comply withany order or demand madeby the Public Guardian inrelation to the property orfinancial affairs of the adultinsofar as this is within thescope of the guardian’spowers.

The general duties of aguardian are:

• The duty to keep records of the exercise of his orher powers. It follows fromthis that when you areexercising any of theguardian’s functions on hisor her behalf, you shouldrecord when you do so andforward this record to theguardian at regularintervals.

• The duty to provide thelocal authority with anyreports or other informationabout the personal welfareof the adult, or the exerciseby that guardian of his orher powers as may bereasonably requested.

• A number of reporting and monitoring duties onfinancial guardians as setout by the Office of thePublic Guardian.

• The ability to make anapplication to the sheriffif the adult or any otherperson does not complywith the welfare power(s)being executed by theguardian with which theymight reasonably beexpected to comply.The sheriff may make acompliance order obligingpeople to adhere to the

The delegate guardian

When the local authority is the guardian, theguardianship order normallystates that the guardian isthe Chief Social WorkOfficer. The local authoritymust then provide a memberof staff to fulfil the role ofguardian. They aresometimes called thedelegate guardian. Theremay be an allocated workerfor the person who lackscapacity, as well as adelegate guardian. Theallocated worker/caremanager would be the dayto day contact for the careprovider. The delegateguardian would usually onlyget involved at the reviews,for visits, and always whenmajor decisions are beingmade about the care plan.

7

decision of the guardian.This might even involve thepolice returning a person towhere the guardian wishesthem to live.

• A common law duty ofcare for welfare guardiansand a fiduciary duty forfinancial guardians.

Can more than one person

be appointed guardian?

Two or more people may beappointed as joint guardians.One may have welfarepowers, the other may havefinancial powers, or theymay share both. It isimportant, therefore, thatcare providers understandthe roles of all guardiansinvolved.

A substitute guardian maybe appointed either initiallywhen the guardianship isgranted, or subsequently by application to the sheriff.The substitute becomes theguardian when the originalguardian becomes unable to act in their role.

Who else might be

involved in guardianship?

The supervisor

When the guardian is arelative, carer or otherprivate individual, and haswelfare powers, the localauthority in which the personlives must allocate asupervisor for the guardian.This will usually entail thesupervisor meeting theguardian, reviewing the care plan, at least sixmonthly. The supervisor willlook at the appropriatenessof the use of powers.

Can guardians be given

powers to consent to

medical treatment?

A guardian may have welfarepowers relating to medicaldecisions. The care providershould consult with doctorsabout medical decisions asnormal, but they must alsoconsult with guardians (andwelfare attorneys) if theyhave relevant powers, beforedecisions are made. It is,therefore, important that acare provider knows whethermedical powers weregranted in the order.

If the person lacks capacityto decide about his/hermedical treatment, acertificate under the AWISection 47(1) is required inorder to authorise treatment.This is the case regardlessof whether there is aguardian or a power ofattorney with powers relating to medical decisions.The GP, or other authorisedhealth care professional,should complete thistreatment certificate. It isrecommended that a copy of this is kept close to wherethe adult is receiving theireveryday treatment, so that care providers givingmedication can see that thetreatment certificate covers

8

What do care providers

need to know?

Care providers should know:

• Who the guardian is andhow he or she can becontacted at all times.In the case of the localauthority acting asguardian, this is the nameas well as contact detailsof the person in the localauthority to whom this hasbeen delegated and contactdetails for whom to contactin his or her absence.

• The names and contactdetails where a joint orsubstitute guardian hasbeen appointed.

• What powers a guardianhas.

• How long the power ofguardianship lasts.

• Which powers the guardianwishes to delegate to themand the recording andreporting arrangementsrelated to the exercise of any delegated powers(see below).

• What wishes the guardianhas regarding thecircumstances in which the care provider shouldcontact him or her, e.g.notification of seriousaccidents and incidents,

the treatment they aregiving, and is up to date.(Treatment certificates needrenewed either annually, orafter three years, dependingon the nature of thetreatment.) Treatmentcertificates, and guidanceabout when they are to becompleted, are available todownload from the ScottishExecutive website.

Where there is conflict overmedical treatment betweenthe doctor and the guardian,they can seek resolution bycontacting the MWC whomay organise anindependent doctor to givean opinion about theproposed treatment (section50). If the care provider, orother interested party, is inconflict over the treatmentbeing given, they can appealto the sheriff (section 52).

Issues regarding the covertadministration of medicationare addressed in a separateMWC publication (see ‘Otherreading’ below).

or information about certainmeetings the guardianmight wish to attend.

• The name and contactdetails of the local authoritysupervising officer in thecase of private welfareguardianship and contactdetails for another officerwhen this person is notavailable.

What powers can be

delegated to the care

provider?

The care provider, carehome workers or supportstaff, are often the peoplewho intervene directly in the life of the person wholacks capacity. It is the careprovider who is expected to carry out the care plan,which may include placinglimits on the person’sfreedom. It is necessary,therefore, for the careprovider to know whichpowers have been delegatedto them. This means he orshe may have the delegatedpower, for instance, todetermine a special diet forthe adult, withhold alcohol,manage who the person isallowed to see or not see, orwhen he or she can go out.

Some interventions mayinclude the use of hands on restraint, or actualdeprivation of liberty. Careproviders need to be clearwhen such powers havebeen delegated to them andthe circumstances in whichthey can use them.

The reverse side of knowingwhich powers have beendelegated to the careprovider is knowing whichpowers have not been

delegated. The care providershould know when to call in the guardian and involvehim or her in decisions andmeetings. In virtually everycase where there is aplanned change to the careor treatment plan, the careprovider should contact theguardian and discuss this withhim or her first. The guardianshould also be contactedregarding any significantaccident or incident (asshould other bodies such as the Care Commission).The important factor is for managers to clearlyunderstand and record theexpectations of the guardianregarding communicationfrom care providers.

9The care provider should

know when it is appropriate

to involve the guardian in

decision-making.

What is a power of

attorney?

Whilst an individual retainsthe capacity to do so, he orshe can make out a power ofattorney. Power of attorneygives a trusted person,often a family member or asolicitor, the power to makecertain decisions or takecertain actions on behalfof an individual, should that individual eventuallylose their ability to makedecisions for him or herself.

A person may have thecapacity to sign over apower of attorney tosomeone they trust, eventhough they lack somecapacity to make morecomplex decisions for which they are granting the powers. However, wherecapacity is borderline, it isbest practice for there to be a formal assessment of capacity by a doctor.

As with guardianship,the powers can relate toproperty and finances(continuing powers ofattorney) and/or welfarematters (welfare attorneys).We will be focusing primarilyon those relating to welfarematters in this guidance.

When a person’s capacitybecomes impaired, decision-making is much clearer ifthere is an existing power of attorney, as the attorneyshould be able to state whatthe person’s past wisheswere. They should be able to carry out their decision-making role with someconfidence that the decisionsbeing taken are what theindividual would have wantedwhile they had capacity.

As with guardians, power of attorney can be sharedbetween two or more people.

When does a power of

attorney come into effect?

Essentially a power ofattorney can come intoeffect any time after it isregistered with the Office forthe Public Guardian (OPG).There are, however, factorswhich might affect when,following registration, thepowers can be exercised by the attorney. A continuingpower of attorney relating to property or finances maybecome effective in somecases, at any point afterregistration. It is possible for any power of attorneydocument to state that thePublic Guardian must notregister it until theoccurrence of somespecified event. In suchcases the OPG will not register it until satisfiedthat the specified event hasoccurred. In all welfarepowers of attorneydocuments (and in thosecases of continuing powersof attorney which cannotstart being used until there isa loss of capacity in respectof the powers granted) itmust be stated that the adulthas considered how such adetermination of capacity isto be made. This may be, forinstance, the completion of

10

a medical examination whichconfirms the loss of capacityin respect of those powersgranted. The law states that the attorney, beforeexercising any powers, mustreasonably believe that theadult has become incapablein relation to these decisionsor actions which need to bemade or taken.

How long does a power

of attorney last?

Most commonly, the power ofattorney lasts indefinitely. Veryoften the welfare attorney has a wide range of potentialpowers at his or her disposalwhich he or she can exerciseas and when necessary.It may be, however, that a person has fluctuatingcapacity, or that they mayrecover capacity lost, such asafter a stroke or in cases ofalcohol related brain damage.In such cases where awelfare attorney has beenappointed, they may stophaving to use their powers in the event of the adulthaving recovered capacity.

What authority does the

welfare attorney have?

An attorney may have thelegal authority to make anumber of decisions onbehalf of an adult who lacksthe capacity to make thesedecisions for him or herself.The decisions they can makewill be specified in the ordergranted and it should not bepresumed that a welfareattorney has the power tomake all decisions regardingthe care of a person.

As with guardians under the Act, the actions of theattorney are subject to thegeneral principles, so it isimportant that everyoneconcerned in the care ofsomeone who lacks capacityknows these principles,and how they can work toguide best practice andresolve problems (see pages 17-21).

The attorney can insist thathis or her decisions onbehalf of the person beingcared for are executedaccording to the attorney’swishes, but if the personwho lacks capacity refusesto comply, the attorneywould have to considerapplying for guardianship.The power to enforcecompliance only exists with

11

a guardian, not an attorney.

Likewise, if anyone,including the person lackingcapacity, is unhappy aboutthe decisions being made by the attorney, he or shecan apply to the court for anorder requiring the attorneyto be supervised by the localauthority. The sheriff hasother powers which can beused under this section 20 of the Act. Similarly, thesame parties can apply forguardianship, or ask thelocal authority to do so ontheir behalf.

Attorneys and guardiansshould be involved in alldecisions (for which theyhave the relevant powers)about changes in carearrangements and treatmentplans, and be invited tomeetings at which thesearrangements are discussed.

No one, not even a guardian,should be making decisionsfor someone else, if thatperson has capacity to makethe decision for themselves.Every effort should be madeto encourage the person todevelop and exercise thenecessary skills to managehis or her own welfare andfinancial affairs.

What are the benefits

of power of attorney

for people in your care?

As stated above, anybodywho has the capacity tounderstand what he or sheis agreeing to in grantingspecified powers to theattorney may grant a powerof attorney. Granting apower of attorney whensomeone has capacity mayavoid the need for aguardianship order to bemade in the future. Powersof attorney are intended toensure that decision-makingpowers are given tosomeone the individualwould trust to act as he or she would, in similarcircumstances. They are away of an adult maintainingsome control over his or heraffairs after losing capacity.They often have theadvantage of being muchless expensive thanguardianship applications(unless undertakenpersonally or by obtainingfree legal aid) and avoid the necessity of applying to the court and attendingany related hearings.

Powers of attorney might be ideal for use by someonein the early stages ofdementia. Such an option

could be discussed bymedical, nursing and/orsocial work staff as part ofthe process of sharing thediagnosis with an individualand his or her family. Inmany cases people with alearning disability will notneed someone to exercisepowers on their behalf asthey would have the capacityto manage their own affairs.In other cases, an individualwith a learning disabilitymight have sufficientcapacity to appreciate that it might be helpful to grantcertain powers to someonethey trust such as a familymember. The individual couldgrant a power of attorneyeven though he or she mightnot have the capacity tomake the decisions or takethe actions in those areas towhich the specified powersrelate. This is becausecapacity under the Act isalways in relation to specificdecisions or actions.

Welfare powers of attorneyhave become very popularwith the public even at thisearly stage in the life of theAct. Last year nearly 15,000welfare powers of attorneywere registered with theOPG. In the first six monthsof 2006/07 this rose to

12 No-one should be making

decisions for someone else

if that person has capacity

to make the decision.

approximately 19,000 new welfare POA casesregistered. It may be, in time,that the greater use ofwelfare powers of attorneywill slow down the rate ofgrowth in the number ofwelfare guardianshipapplications and orders.

What are the functions

and duties of the local

authority?

Part 1 of the Act also detailsthe functions of the localauthority. Almost all adults inyour care will have had, andwill continue to have, somelocal authority involvement.They would have had acommunity care assessmentand should continue to have a care manager. It isimportant to know about thewider duties of the localauthority under the AWI Act,so that you can alert thekey local authority contactwhen you wish to discussmatters which might fallwithin these functions.

These functions include:

• Supervising welfareguardians. This requiresvisits to the guardian andthe adult on guardianshipat intervals of no longerthan six months.

• Receiving and investigatingany complaints relating tothe exercise of powers bya welfare attorney.

• Investigating anycircumstances madeknown to them in which thepersonal welfare of an adultseems to them to be at risk.

• Making applications andundertaking the role ofguardian.

• Supervising welfareattorneys when ordered by the court.

• Providing welfareguardians and welfareattorneys, when requested,with information and advicein the connection with theperformance of his or herfunctions under the Act.

• Consulting with the MentalWelfare Commissionand/or the Office of thePublic Guardian on mattersrelating to the exercise offunctions under the Act,where there appears to be a common interest.

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What other parts of the

Act should I be aware of?

The Principles of the Act

Part 1 introduces thedefinition of incapacity andlays out the generalprinciples to be followedwhen operating under theAct. The general principlesapply to care providers aswell as guardians andothers. Basically all actionstaken under this Act must be in accordance with theseprinciples. This is covered inmore detail on pages 17-21.

Powers relating to financialand property matters

A guardian or attorney mayhave powers relating to thefinances or to the property ofthe person being cared for.They will have to submitregular financial reports tothe OPG. The funds andassets that they manage on behalf of the adult wholacks capacity still belong to that adult and must bekept separate from theguardian/attorney’s ownfunds and assets. Inmanaging the financialaffairs, they must take intoaccount present and pastwishes of the individualconcerned, and use funds to benefit the adult. Funds

must also be managed inaccordance with all of thegeneral principles of the AWI Act.

Access to funds

Part 3 details the proceduresfor “intromitting” or managingthe funds of someone wholacks capacity, through adesignated account. Theremay be someone in yourcare who has fundsmanaged this way. The useof these funds is agreed to, and monitored by, theOPG, but it is important that you know when thesearrangements are in place.

Management of funds bymanagers of authorisedestablishments

Part 4 details how managersof authorised establishments,registered with the CareCommission, may managethe funds of a resident wholacks the capacity tomanage their own funds and for whom there is nofinancial attorney orguardian. The manager ofan authorised establishmentmay apply to the CareCommission for a Certificateof Authority for themanagement of funds. TheCare Commission has a dutyto enquire from time to time

on how such funds aremanaged. The funds mustbe managed in line with theprinciples of the AWI Act.The Scottish Executive hasproduced a Code of Practicefor managers who wish toconsider this option (seeAppendix 4). This is not to be confused with DWPappointeeship.

Consent to medicaltreatment

Part 5 details how the legalauthority can be obtained togive medical treatment tosomeone who lacks capacityto consent. Even wherethere is a guardian/attorneywith relevant powers thereshould be a treatmentcertificate (section 47). Moreinformation on this can befound on page 8.

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What is incapacity and

what should care staff

know about it?

Each individual has adifferent capacity to makedecisions about differentaspects of their personal life,their welfare and financialaffairs. For most people thislevel of capacity is sufficientfor everyday purposes. Thelaw recognises that each ofus, as adults, has the right tomake decisions for ourselvesunless it is established thatwe lack the capacity to do so.Following severe mental illhealth or disability, trauma, orwith the onset of illness suchas dementia, our capacity tomake some decisions maydiminish, either temporarilyor permanently, partially or totally.

Everyone in the care sectorinvolved in the care ofpeople who may not havefull capacity should be awareof the ability of individuals intheir care to make decisionsfor themselves. It shouldform a part of the individual’sassessment and care plan,especially any riskassessment and riskmanagement plan.

It will often emerge in thecourse of your work thatsomeone in your careappears to have diminishingcapacity to make importantdecisions affecting his or her care and/or treatment.Carers or relatives can findthemselves increasinglyhaving to make decisions for the person. Eventually,as this situation persists, orthe frequency or importanceof these interventionsincreases, there should be an assessment of theperson’s needs, and his or her capacity to consent to care, treatment, and themanagement of his or her financial affairs. Theassessment should becarried out by doctors, socialworkers, and other healthcare workers. It should takeinto account the views ofall those involved in theperson’s care, includingrelatives and carers.

The result will be a care plan and possibly a riskmanagement plan thatcovers all of theinterventions necessary to maintain the person wholacks capacity in a careenvironment that can safelymeet their needs. Dependingon the outcome of this

review, and the views ofall those involved, it may be necessary to considerwhether formal authority isnecessary to manage thewelfare and/or financialaffairs of the person beingcared for. It is likely thatseeking formal authority will be necessary if any ofthose involved in the review,including the adult, cannotagree about key aspects ofthe care plan.

The AWI Act takes intoaccount the variouspossibilities regarding theability to communicate,the level of capacity, and its variability across thespectrum of decisions thatneed to be made, anddefines incapable as beingincapable of:

a) Acting.

b) Making decisions.

c) Communicating decisions.

d) Understanding decisions.

e) Retaining the memory of decisions.

It is, therefore, imperativethat all care providers areaware of some importantfeatures that need to beconsidered when assessingcapacity. An adult may havedifficulties communicating or

15

expressing their viewsverbally, but this does notmean they necessarily lackthe capacity to hold a view.People who know them well,relatives and carers, mayfind it easier to understandtheir non-verbalcommunication, and anyassessment of capacityshould take this into account.If necessary, professionalswith the necessary skills,such as speech andlanguage therapists, shouldcarry out this assessment.

Equally important will be aperson’s language skills,their comprehension, theirability to concentrate, or takein information in certaincircumstances, and theirability to remember things.It is also crucial not to viewthe individual in isolation.A person left to their owndevices may lack capacity to make key decisions ortake certain actions which,with appropriate support andassistance from others, heor she might have thecapacity to make. Skilledcarers and professionals, aswell as close relatives withgood knowledge of theindividual and a goodrelationship, may be able tohelp the adult work through

the otherwise confusingarray of information and takedecisions for him or herself.Difficulties in organising andsequencing of informationand actions may be overcometo enhance an individual’sdecision-making capacity.All of these factors mustinfluence how an assessmentof capacity is made.

What are the general

principles on which the

Act is based?

The principles of the AWIAct are, in effect, a set ofrules that must be adheredto when intervening in thelife of a person subject tothe provisions of the Act.

It is important that everyonecaring for someone wholacks capacity knows theprinciples of the AWI Act asthey underpin good practicewhether a person is onguardianship or not.

It will be expected that staff,as well as guardians/attorneys, can evidencefollowing these principleswhen for example, the careof the adult is beingreviewed by the MWC.

16

So what are the principles?

There are five principles:

1. Benefit

There shall be nointervention in the affairs of an adult under or inpursuance of this Act unlessthe person responsible forauthorising or effecting theintervention is satisfied thatthe intervention will benefitthe adult and that suchbenefit cannot reasonably be achieved without theintervention.

There have been someinteresting challenges as to whether this principle has been met.

Case example 1: Whatbenefit to the adult doesbuying a birthday present fora grandchild bring? It hasbeen argued that if it wasthe normal practice of theadult to buy a grandchild apresent for their birthday,and it was known that theydid this as part of a loving,sharing relationship thatbrought mutual benefit toboth adult and grandchild,and that if the adult hadcontinued to have capacitythey would have continuedthis practice (i.e. it meets allthe other principles, seebelow), that although the

notion of benefit to the adultin this case may be tenuous,nevertheless reasonableexpenditure for this purposemay be acceptable.

Case example 2: Whatbenefit to the adult doesbuying a car for a relativebring? Even though arelative might argue that theadult would receive morevisits if they had a car, itwould be difficult to justifythis expenditure for apotential benefit, when thebenefit of having the car tothe relative is so much moreevident than the benefit tothe adult. Expenditure forthis purpose may not beacceptable.

Case example 3: Whatbenefit does denying accessto one relative with whomthe adult previously had areasonable relationshipbring? Different sides of afamily sometimes fall out,and guardians have beenknown to try to limit, or stop,access to an adult in a care home to their siblings,because of their ownfeelings about the brother or sister (or in-laws).If the adult formally had areasonably good relationshipwith both sides of the family,or even if it can be shown

from their current contactwith that relative, that thiscontact is positive andstimulating to both adult andrelative, it may be that theguardian’s decision to try tolimit access is against theprinciples of the Act. Carefuland diplomatic negotiationmay be needed by the carehome, or the supervisor ofthe guardian, to settle thisdispute. Unless it is clear thatthe contact is against thewishes of the adult, or thatthe contact is causing stressor anxiety, then it might beagainst the principles for theguardian to use their powersfor this purpose.

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2. Minimum intervention

Where it is determined thatan intervention in the affairsof an adult under or inpursuance of the Act is tobe made, such interventionshall be the least restrictiveoption in relation to thefreedom of the adult,consistent with the purposeof the intervention.

The principle of minimumintervention might be used to decide where or how thecare of an adult who lackscapacity can be provided.Supporting them in their own home might be the least restrictive alternative.However, in some instances,the support level and therestrictions needed tomaintain care in their ownhome safely, may amount to a more restrictive regimethan can be safely managedin a care home.

Case example 4: A son who has welfare powersexpresses the view that hewishes his mother to remainin a hospital ward. Hebelieves her care needs arebetter met in this setting andthat it would be unsafe tomove her to a care home.This can be difficult toresolve if the care teambelieve her needs can be

safely met in a care home.Ultimately, the hospitalmanagers could dischargethe patient from a ward ifthe clinical decision of thedoctor is that she no longerneeds hospital care. The sonfollowing the principles ofthe Act may decide whichcare home she moves to.The hospital ward andregime may not be theminimum interventionrequired to meet her needs.

Case example 5:Behavioural problems arenoted to occur in the care of an elderly resident withdementia. After a period ofmonitoring it is observedthese occur more frequentlywhen personal care is beingattended to; the residentdoes not enjoy being bathednightly and prefers to sleepin a specially adapted chairnext to her bed, rather thanin the bed itself. Followingdiscussion with the guardianit is revealed that she neverused to sleep in her bedbefore she moved to thecare home and preferred notto bathe daily. It is agreedwith the guardian and caremanager to have a trialproviding a bath everysecond or third night, and to allow the resident to sleep

in her chair. A review periodis set for this decision andher behaviour is monitored.

Some elements that wouldgenerally form part of aperson’s care plan mightrepresent a more restrictiveintervention than isnecessary when consideringthe needs of that person as an individual.

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3. The present or pastwishes of the adult

In determining if anintervention is to be made,and, if so, what intervention isto be made, account shall betaken of the present and pastwishes and feelings of theadult so far as they can beascertained by any means ofcommunication appropriateto the adult’s situation.

Behaviour may be the onlyway a person with limitedcommunication can expresstheir will. As can be seenfrom the above example, itmay be necessary to takebehaviour as an expressionof current wishes andfeelings. When trying toascertain the wishes of aperson it may be necessaryto offer simple alternatives.For instance, in meeting thisprinciple care staff might inthe morning offer the choicebetween two outfits to wearthat day, rather thanexpecting the person tochoose from all thealternatives. Care staffmay need to encourage the person to engage inactivities in a way that theycan understand, rather thanin a way that may causethem anxiety.

Case example 6: A guardianwho lives in Wales andcannot visit his motherdecides he wishes hismother to move to Wales to be nearer where he lives.When he tells the care homehis wish they contact thecare manager as they feelthis does not take intoaccount his mother’s wishes.A meeting is arranged andso far as it can beestablished the residentstates she wishes to staywhere she is. The doctoradvises that, at her age,there is a risk to her health,but he does not feel this isso significant as to be adetermining factor. Anadvocate is involved andspends some time getting to know the resident. Thecare manager discusses the situation with staff in thecare home and her manager.

Ultimately negotiation is thebest course, but if it wasvery clear that the son wasoverriding his mother’swishes, the decision couldbe challenged through thecourt. Sometimes the benefitto the mother of the movemay not be apparent to her,and her resistance might bebased on her incapacity tosee this benefit. The move

might go ahead. On otheroccasions the court maydecide the guardian is notcarrying out his role in amanner consistent with theprinciples of the Act andappoint the Chief SocialWork Officer of the localauthority as guardian in his place.

4. Consultation with othercarers, relatives and otherrelevant people

In determining if anintervention is to be made,and if so, what interventionis to be made, account shallbe taken of the views of:

• The nearest relative.

• The primary carer.

• Any guardian, or power ofattorney with the relevantpowers.

• Any other person asdirected by the sheriff.

• Any person who appears to have an interest in thewelfare of the adult or inthe proposed intervention,where these views havebeen made known to theperson responsible formaking or authorising theintervention.

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By now it will be clear thatany intervention or decision,made by any person, onbehalf of someone wholacks capacity must bediscussed with all partiesinvolved in the care of thatperson and their views takeninto account. Although apower of attorney can insiston their view dominating, asmentioned above, theycannot force compliance ona person who lacks capacityand resists their wishes. Aguardian on the other hand,may seek a complianceorder (section 70) throughthe courts, and in such acase, the person lackingcapacity must comply.

5. Encouraging the adult toexercise their own will andself-determination

Any guardian, power ofattorney or manager of anestablishment exercisingfunctions under this Act shall,in so far as it is reasonableand practicable to do so,encourage the adult toexercise whatever skills heor she has, and to developnew skills, concerning theirpersonal welfare, financialaffairs or property.

It is not simply acceptable to resign oneself to thelimitations of a person’scapacity without testing theirability to develop skills. Thisprinciple puts an expectationon guardian/attorneys, andcare providers, to encourageand promote the decision-making skills of the personin all areas of their welfareand finances.

Case example 7: An adultwith a learning disabilitymoves from long-termhospital care in to his owntenancy. The care providerasks for a guardian to signthe tenancy agreement. Ifthe language of the tenancyagreement was couched in a way that the person couldcomprehend, and they werehelped to understand the

significance of theagreement and were able to give informed consent,this could be more valid andempowering than expectingsomeone else to beappointed to do this.

Case example 8: An adultwith a learning disability hasbeen assessed when he wasliving in long-term hospitalcare as having no roadsafety skills. Accordinglywhen he moves to his owntenancy his care plan stateshe is never to be allowed outof his home unaccompanied.The support staff believe hecan acquire these skills andwant to try to train him inroad safety, but his guardianis reluctant on grounds ofsafety. This principle can be used as the basis forreasonable negotiation,with the guardian, to permitthe training to begin whenrisk assessments have been completed.

Case example 9: A newresident arrives in a carehome with few clothes andtoiletries. When the careprovider contacts the relativewith financial powers ofattorney they come to thecare home with some items.The staff talk to the attorneyabout leaving a float, but he

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does not agree to this, andsometimes over the weeksthe care home’s own fundshave to be used until theattorney eventually providesmoney. The new residentcannot go out shopping,or select their own clothes,and never has any money in their pocket to buy smalldaily items.

Often relatives will havegenuine cause for concernabout how secure moneyand other personal items are in the care home. It willbe necessary to build up atrusting relationship with theguardian/attorney and showthem how you can accountfor expenditure. It is possibleto use this principle topromote the independenceof the person you areproviding support to,through negotiation withguardians/attorneys.

What is the Office of the

Public Guardian?

The OPG was created as a consequence of the AWIAct. It is based in Falkirk andis part of the Scottish CourtsService. Its functions are:

• To supervise guardians andintervenors dealing with the property or financialaffairs of an adult wholacks capacity.

• To grant authority toaccess funds.

• To maintain registers ofguardians/attorneys.

• To provide advice andguidance on financialmatters.

• To investigate complaints.

• To consult with the MWCand local authorities.

Care providers and otherswith concerns about thefinancial affairs and propertyof a person who lackscapacity, even if there is noguardian or attorney, cantelephone the OPG anddiscuss their concerns.

What is the Mental Welfare

Commission for Scotland?

The MWC is an independentorganisation set up bystatute, working to safeguardthe rights and promote thewelfare of anyone with amental illness, learningdisability, or other mentaldisorder. We visit people onwelfare guardianship wherewe think this might beappropriate, speak to careproviders, guardians/attorneys, and othersinvolved in the care of aperson who lacks capacity.If we have any concernsabout the care and treatmentof a person on guardianshipwe may bring these to theattention of the relevanthealth board or localauthority. We mightundertake a more detailedinvestigation where thewelfare or property ofsomeone who lacks capacityis at risk.

Through our telephone adviceservice we can offer careproviders and others withinformation and guidanceabout use of the AWI Act inpractice, even if there is noguardian or attorney.

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Appendix 1

Glossary of terms

advocateAn independent person whoprovides support to anotherindividual in order that theirvoice can be heard indecision-making processes.

the ActThe Adults with Incapacity(Scotland) Act 2000.

the adultA person who is 16 yearsold or older.

chief social work officerThe officer appointed by alocal authority under section3 of the Social Work(Scotland) Act 1968, asamended by the LocalGovernment etc (Scotland)Act 1994.

courtIn this guidance this meansthe sheriff court which dealswith most matters under theAct that require a judicialdecision.

financial guardianGuardian with powers overthe adult’s property andfinancial affairs.

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intervention orderAn order made by thesherriff, under part 6 of theAct, that something shouldbe done or a decision madeon behalf of an adult.

MWCMental Welfare Commission

nearest relativeThe person defined by theAct as having the closestdegree of kinship to the adult.

OPGOffice for the PublicGuardian; the organisationresponsible for monitoringfinancial guardianship and POA.

primary carerA primary carer is the mainperson providing informalcare to an individual. Theprimary carer may or maynot reside with the personthey are caring for.

welfare attorneyAn individual who has beenspecified within a Power ofAttorney document to takeon welfare decision-makingpowers on behalf of anotheradult, when that adult haslost capacity to make thosedecisions him or herself.Welfare attorneys areappointed by an individualwhile they still have decision-making capacity.

welfare guardianAn individual, appointed bythe courts, to make specificwelfare decisions on behalfof another individual whodoes not have capacity tomake decisions him orherself.

Guardianship Checklist for Resident’s File

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Name of person with incapacity DOB Date g’ship granted Duration of g’ship

Name and address of guardian(s) Relationship to adult

Tel numbers/contact arrangements, inc out of hrs

Circle whether – welfare/financial/both

Circle whether – welfare/financial/both

Powers of guardian/attorneys Circle* Tick* Notes

Decide where the adult should reside. Yes/No If No, the adult may be free to leave. Isthere a policy to manage this situation?

Provide social, cultural, or educational activities and holidays. Yes/No

Access to be given to medical, social work or care staffwhen required.

Yes/No

Financial powers of any kind (usually as financialguardian/attorney).

Yes/No If No, add details below of who ismanaging finances.

Consent to medical treatments, research, or supervisemedication.

Yes/No A section 47 Treatment Certificate1 toauthorise treatment may be necessary. SeeGP or psychiatrist.

Take legal action of any kind on behalf of the adult. Yes/No

Access to any confidential records or data held on the adult. Yes/No If Yes, guardian has the same access tocare home’s records as adult.

Dress, diet, personal appearance or hygiene. Yes/No

With whom the adult may consort, or restrict or controlaccess to certain people.

Yes/No If Yes, add details below of any person whohas restrictions put on their access to theadult.

Accompany the adult, or monitor or supervise the adult at alltimes.

Yes/No If No, is the adult’s right to freedom andprivacy being respected/promoted?

Other, please specify. Yes/No If there are more powers attach a separatesheet2.

* Circle Yes if guardian has this power2. Tick each of the powers the guardian has delegated to staff.

Name and address Telephone number

Supervisor (for private guardians only)

Person managing financial affairs – ie appointee

Local authority:

Person(s) for whom access to adult is restricted2

1 The Act requires a Treatment Certificate be completed even where there is a guardian/attorney with this power.2 Attach details of any arrangements, and any other authorised restrictions, to this sheet.

Appendix 2

This is a checklist of information that we would expect to see in the file of an individualsubject to welfare guardianship. Checklists can be downloaded from the publications sectionof our website www.mwcscot.org.uk.

Appendix 3

Other useful contacts

The Care CommissionCompass House11 Riverside DriveDundeeDD1 4NYTel: 01382 207 100

The Office of the PublicGuardianHadrian HouseCallendar Business ParkCallender RoadFalkirkFK1 1XR

Appendix 4

Other reading

Published by the MentalWelfare Commission:

Safe to Wander

Rights, Risks and Limits to Freedom

When to invoke the Adultswith Incapacity (Scotland)Act 2000

Covert Medication

Available atwww.mwcscot.org.uk.

Published by the ScottishExecutive:

Code of Practice forContinuing and WelfareAttorneys

Code of Practice forManagers of authorisedestablishments under part 4 of the Act

Guardianship andIntervention Orders – makingan application – A Guide for Carers

And other training materialsavailable on the ScottishExecutive website

Published by the ScottishCommission for theRegulation of Care:

The National CareStandards

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Thistle House91 Haymarket TerraceEdinburghEH12 5HE

Tel: 0131 313 8777Fax: 0131 313 8778Service user and carerfreephone: 0800 389 6809

[email protected]

www.mwcscot.org.uk

March 2007