Adults with Incapacity Act
The Adults with Incapacity (Scotland) Act 2000 provides a framework for safeguarding the welfare and managing the finances of adults (people aged 16 or over) who lack capacity due to mental illness, learning disability, dementia or a related condition, or an inability to communicate.
Principles of the Adults With Incapacity Act
The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so.
Anyone authorised to make decisions or take actions on behalf of someone with impaired capacity must apply the following principles:
Principle 1 - Benefit
Any action or decision taken must benefit the person, and only be taken when that benefit cannot reasonably be achieved without it.
Principle 2 - Least-restrictive option
Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person's freedom as little as possible.
Principle 3 - Take account of the wishes of the person
In deciding if an action or decision is to be made, and what that should be, account must be taken of the present and past wishes and feelings of the person as far as these may be understood.
Some adults will be able to express their wishes and feelings clearly, although they would not be capable of taking the action or decision which you are considering. For example, they may continue to have opinions about a particular item of household expenditure, without being able to carry out the transaction personally.
The person must be offered help to communicate their views. This might mean using memory aids, pictures, non-verbal communication, advice from a speech and language therapist, or support from an independent advocate.
Principle 4 - Consultation with relevant others
Take account of the views of others with an interest in the person's welfare. The Act lists those who should be consulted whenever practicable and reasonable. It includes the person's primary carer, nearest relative, named person, attorney, or guardian, if there is one.
Principle 5 - Encourage the person to use existing skills and develop new skills
Encouraging and allowing the adult to make their own decisions and manage their own affairs and, as much as possible, to develop the skills needed to do so.
Supervision and regulation
Under the Act four public bodies are involved in the regulation and supervision of those authorised to make decisions on behalf of a person with incapacity. These are: the Office of the Public Guardian (Scotland), the Mental Welfare Commission for Scotland, the courts, and local authorities.
Welfare guardianship
By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them.
Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care.
The welfare guardian might be a relative, friend or a carer. The court can also appoint the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000.
Local authorities have a duty under the Act to supervise all welfare guardians, and to visit the guardian and the adult at regular intervals.
Local authorities also have a duty to make an application for welfare guardianship where it is needed and nobody else is doing so.
The Commission's role
This law also gives the Mental Welfare Commission a role in making sure that welfare guardianship works in line with the principles of the Act.
These principles say that any decisions made by a guardian:
- must be of benefit to the person concerned
- will only be taken when it is really needed
- must take into account the wishes of the person
- should restrict that person's freedom as little as possible
- should only be taken when the person could not make a decision themselves
- should involve carers, relatives and people who work closely with the person
We write to every new private guardian to let them know about our role. We visit around 350 individuals a year on welfare guardianship to ensure the principles are being applied.
Financial guardianship
The Adults with Incapacity (Scotland) Act 2000 provides arrangements for making decisions and taking actions to safeguard the personal welfare, property, and financial affairs of adults whose capacity to do so is impaired.
Part 6 of the Act allows for an application to be made to the court for:
- An intervention order authorising a person to take action, or make a decision, of which the adult is incapable.
- An order appointing a person or office holder as guardian in relation to the adult's property, financial affairs, and personal welfare.
- An order appointing a person or office holder in relation to a child who will become an adult (age 16) within three months, but such an order will not have effect until the person's 16th birthday.
Who can apply?
An application can be made to the court by any person, including the adult, claiming an interest in the property, financial affairs, or personal welfare of the adult. The applicant will, however, be required to satisfy the court as to their suitability to be appointed.
The local authority has a duty to apply where necessary and nobody else is doing so.
The Office of the Public Guardian provides information, advice, and guidance about powers of attorney, access to funds, guardianship, and intervention orders. It can investigate concerns where the property or financial affairs of an adult seem to be at risk. It also has supervisory duties in respect of financial guardianship and intervention orders.
The Mental Welfare Commission is only interested in financial powers where welfare powers have also been applied.
For more information on financial guardianship, please contact the Office of the Public Guardian on 01324 678300
Money Matters
Download our quick guide on how to effectively manage the funds of an individual who lacks capacity. Includes information on guardianship and powers of attorney.
Power of attorney
A power of attorney is authority given by an individual with capacity, known as the Granter, to another person(s), known as the Attorney(s), to deal with aspects of the Granter's affairs. This could relate to financial/property matters and/or personal welfare.
Welfare powers cannot be exercised until the Granter has lost the capacity to make these decisions. The Granter can decide how this decision on capacity is to be made.
The Granter decides which powers they wish to grant, however as these powers will be strictly interpreted the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs.
To make the agreement official, a power of attorney document is completed. This details the powers which the Granter wishes the Attorney to have and must be signed by the Granter. It must be certified by a solicitor or a medical practitioner, and then be registered by the Office of the Public Guardian.
Contact the Office of the Public Guardian on 01324 678300 for more information about power of attorney.
Money matters
Download our quick guide on how to effectively manage the funds of an individual who lacks capacity. Includes information on guardianship and powers of attorney.
Medical treatment
The Adults with Incapacity Act sets out the principles for giving medical treatment to people who can't consent.
If you are ill, with a physical or mental illness, you may need treatment. The law in Scotland assumes that you can give consent, if you are 16 or over, unless there is evidence of impaired capacity. Some people are not able to give consent, either permanently or temporarily.
The Act allows you to have treatment, but there are safeguards and exceptions.
If you need immediate treatment to save your life, staff will act immediately. Otherwise, your doctor will make an assessment of your capacity to consent to treatment. If your doctor thinks you cannot consent, they will complete a 'section 47' certificate. This allows the doctor, and other staff, to give you the treatment you need. When they do this, they must follow the principles of the Act and the code of practice for part 5 of the Act. Sometimes, other health professionals can assess your capacity and fill in the certificate.
They cannot use force unless it is immediately necessary. They cannot use this part of the Act to continue to use force, or to detain you in hospital. If you are capable, you also have the right to refuse treatment.
You might have a welfare attorney or guardian with the power to give, or refuse, consent to your treatment. If so, the doctor should consult the attorney or guardian before treating you. If they refuse consent, the doctor can ask the Commission to appoint an independent doctor to give an opinion.
Some treatments carry special safeguards. They include abortion, sterilisation, medication to reduce sex drive, and electroconvulsive therapy. These need an independent opinion (section 48) or, sometimes, a court order.
The law is complicated if your doctor thinks you to need to be forced to have treatment. This might need the appointment of a welfare guardian or, if it is treatment for a mental health condition, detention under mental health law. See our 'Right to Treat' guidance for more information.
Right to treat?
Download our guidance on delivering physical healthcare to people who lack capacity and refuse or resist treatment.
Office of the Public Guardian
The Office of the Public Guardian (OPG) has a range of functions under the Adults with Incapacity (Scotland) Act 2000.
The OPG provides information, advice, and guidance with regard to powers of attorney, access to funds, guardianship and intervention orders, and investigations.
It maintains a Public Register of all continuing powers of attorney, welfare powers of attorney drawn up after April 2001, all withdrawers appointed under the access to funds scheme, and all guardians and interveners appointed by the courts after April 2002.
The OPG investigates concerns where the property or financial affairs of an adult seem to be at risk. It supervises the actions of withdrawers appointed under the access to funds scheme.
The OPG also supervises financial guardians and monitors the actions of financial interveners appointed by the courts. As part of this supervision, a financial guardian may be required to provide the OPG with a management plan, inventory of estate and an annual accounting.
Contact the Office of the Public Guardian:
The Office of the Public Guardian
Hadrian House
Callendar Business Park
Callendar Road
Falkirk
FK1 1XR
Tel: 01324 678300
Fax: 01324 678301
DX 550360 FALKIRK 3
LP-17 FALKIRK
General enquiries email: opg@scotcourts.gov.uk
Myth busting AWI
Do you work with people aged 16 years+ in health, social work or social care? We have developed a short animation to address some common myths about practice involving Adults with Incapacity legislation in Scotland. It was co-produced by the Mental Welfare Commission and NES.
Learning resources
The Commission is working in partnership with NHS Education for Scotland to develop learning resources for the workforce to support and promote people’s rights in the application of AWI legislation.
You can access the materials developed so far on the Turas Once for Scotland: AWI page.