Presentation on theme: "Self Directed Supporting Capacity Matters. Introduction Adults with Incapacity (Scotland) Act 2000 How will SDS and the Act intertwine? Personalised legal."— Presentation transcript:
Self Directed Supporting Capacity Matters
Introduction Adults with Incapacity (Scotland) Act 2000 How will SDS and the Act intertwine? Personalised legal services
Main resources under the Act Joint bank accounts Powers of Attorney Access to Funds Guardianship & Intervention Orders Least restrictive Most restrictive Caritas Legal Limited
5 General Principles 1.Benefit 2.Minimum Intervention 3.Wishes of the adult 4.Consultation 5.Encourage exercise of capacity Caritas Legal Limited
Power of Attorney-What is it? Legal document whereby one person appoints another to make decisions and act for them either now or in the future Types – Continuing Power of Attorney – Welfare Power of Attorney – Continuing and Welfare Power of Attorney
Who can grant a POA? Individual Age 16 or over Must have full legal capacity
What is capacity?
What is Capacity? Acting Making Communicating Understanding Retaining the memory of DECISIONS Caritas Legal Limited
Who can be an Attorney? Over 16 years old Corporation but only re Financial POA Bankrupt but only re Welfare POA More than one Attorney Substitute Attorneys
When is it helpful/necessary? To prepare for time when unable to make decisions for themselves 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 Dont need Court or OPG consent Informal Quick to prepare Can be tailored to suit individual requirements CHOICE & CONTROL
Style Continuing Powers To demand, sue for and recover all, claims and sums of money due To open accounts, to operate accounts already opened Meet my general household and living expenses To buy or sell property
Style Welfare Powers Make decisions about my accommodation and care including where I should live, with whom I should live and what services I should receive Decisions about my social and cultural activities Decisions regarding my healthcare, to consent to care which is in my best interests and to refuse consent to care that is not in my best interest or doesnt accord with my known wishes or feelings
Further welfare styles Normal day to day decisions including regarding my diet, dress and personal appearance and do whatever is necessary to preserve my personal dignity 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?
Registration POA, Solicitors Certificate and Attorneys Acceptance of Appointment all get sent to OPG Registration fee £70 Must be registered to use 1 week turnaround via EPOAR
Guardianship Most restrictive option Powers – welfare and financial Differences between POA
Who can apply for Guardianship? Anyone claiming interest in the property, financial affairs or personal welfare of an adult Where it appears adults is incapable of making decisions about finances, property or welfare and is likely to continue to be incapable and No other means under the Act would enable the adults interests to be safeguarded/promoted
Reports – basis of application Adults with mental disorder – Two Medical Practitioner Reports – Mental Health Officer Report Adults with physical condition resulting in inability to communicate – Two Medical Practitioner Reports – Chief Social Worker Report
Process Must be lodged in Court within 30 days of first Report Dual, joint or substitute appointments may be sought Must be parents, siblings or children of the adult
STATISTICS Cause of incapacity Duration Acquired Brain Injury Alcohol related brain disorder Dementia Alzheimers Learning Disability Mental Illness Other Totals % Up to and including 3 years % Greater than 3 but including 5 years % Greater than 5 years % Indefinite % Totals % of all orders5%8%48%31%6%1% 100% Primary causes of incapacity and duration of orders granted in local authority and private guardianship
Indefinite Order Against Potential for abuse Deprivation of liberty Contrary to ECHR For Removes bureaucracy Saves court time Saves legal aid funds
Supervision of Financial Guardians PG can make orders or demands re the adults financial affairs or property Must submit full inventory of adults estate within 3 months of appointment Prepare draft management plan for management, investment and realisation of adults estate within 1 month of inventory Either approved or amended
Comparison Power of Attorney Capacity Choice & Control Welfare powers Financial powers Informal £400 Guardianship Lack of capacity Restrictive Welfare Powers Financial Powers Sheriff Court LEGAL AID!
Other options? s13za Social Work Scotland Act 1968? – (a)Where LA decides adults needs call for provision of a community care service and it appears to the LA that the adult is incapable re decisions about the service the LA can take steps they consider would help the adult benefit from the service – (b) includes moving adult to residential accomodation