• Adults

    The Adults with Incapacity (Scotland) Act 2000

    The Adults with Incapacity Act offers a range of options to allow decisions to be made for those who lack capacity.

    Powers of Attorney

    In general, a power of attorney (POA) is used to provide for the situation where someone might become unable to make decisions in the future. It is now standard to draft these alongside wills.

    It’s important that everyone with capacity considers granting a POA as it avoids the need for a more complicated guardianship application at a later date.

    The key thing to remember about a POA is that you can’t ‘take out’ a POA in relation to someone else. It’s something that must be granted by the individual at a time when they have capacity to understand the document they are signing.

    A POA is also very useful when someone is diagnosed with a progressive illness like dementia. They may also be good for people with mental health conditions where they may have fluctuating capacity.

    Appointee

    The Appointee scheme operates separately from the AWI Act but, where a person lacks capacity and their only income is from state benefits, it may suffice. An exception would be where a person is considering direct payments or they receive funding from the Independent Living Fund (ILF).

    An appointee is appointed by the DWP to look after benefits. An appointee can be an individual (often a family member) or an organisation (known as a ‘corporate appointee’).

    The duties of an appointee include:

    • Filling in claim forms
    • Receiving benefit payments
    • Dealing with correspondence regarding benefits
    • Reporting changes in claimants circumstances
    • Repaying any overpayment of benefit

    Before being appointed, the DWP will check that the prospective appointee is ‘fit & proper’ and that the claimant does indeed lack the capacity to deal with their own benefits.

    An appointee only has the authority to deal with benefits and not any other contracts, including tenancy or care agreements etc.

    Managing Bank Accounts

    This measure is also known as ‘withdrawers scheme’, ‘access to funds’ or ‘intromission with funds’.

    This is used by individual and organisations to manage money and is more straightforward than financial guardianship.

    Families should be careful to keep finances separate, it’s more transparent and helps avoid any unintended consequences (such as questions about what forms part of someone’s estate when they die or what should be included in financial assessments for means-tested benefits or contributions towards care)

    You can download an application form here.

    Guardianship and Intervention Orders

    • Where someone has never had capacity or they have lost capacity to make decisions for themselves and they haven’t previously granted a POA, a Guardianship or Intervention Order may be needed.
    • An intervention order is appropriate to deal with one-off decisions or actions. For example, to buy or sell a property.
    • Where there is likely to be a need for continuing intervention in someone’s affairs, a Guardianship Order may be suitable.
    • Orders can be granted to authorise somebody to be responsible for finances and/or matters relating to the personal welfare of the adult.
    • An application for an Intervention or Guardianship Order has to be made to the Sheriff Court.
    • Applications for welfare powers are automatically eligible for Legal Aid and are not means-tested.

    General Principles

    The Adults with Incapacity Act sets out some basic principles. These rules must be followed by anyone who takes any kind of action or makes decisions under the Act.

    The 5 principles:

    • Any decision or action must benefit the adult
    • You will only be granted the power to make decisions on behalf of someone if these are really needed
    • You must take the past and present wishes of the person into account
    • You must encourage and allow the person to make their own decisions as far as possible and to develop the skills to do so.
    • You should get the views of the adult’s nearest relative and primary carer (if this is reasonable and feasible)