Adults with incapacity
Some adults (aged 16 or over) may not have the capacity to make important decisions about their finances or welfare. This may be because of a mental health problem, learning disability, or dementia.
The Adults with Incapacity (Scotland) Act provides ways to help protect those who are, or may become, incapable of looking after their own welfare or finances. It allows other people to make decisions for them, like:
- arranging services
- managing finances
- managing property
- medical treatment
There are safeguards to make sure any decision made for the adult:
- benefits them
- takes account of their wishes
- restricts their freedom as little as possible
- encourages them to use existing skills and develop new ones
- takes account of the views of others, such as the primary carer
The main ways other people can make decisions for an adult with impaired capacity are:
You can hand over a decision-making power (power of attorney) to another person in case your illness gets worse in the future. This could include decisions about your property, finances and personal welfare. You can arrange for your welfare to be protected and your affairs to be managed, should you one day be unable to make decisions.
You can do this by giving another person - a relative, carer, professional person or trusted friend - power of attorney to look after some, or all, of your property and financial affairs. They can also make specified decisions about your personal welfare, including medical treatment.
More information about power of attorney is on the Office of the Public Guardian in Scotland's website.
A responsible person, known to you and involved with your care, can apply to the Office of the Public Guardian to gain access to the funds of an adult who is unable to manage them.
This applies to funds held in, for example, a bank or building society account in the sole name of the adult or in a joint account where one account holder has become incapable of managing funds.
If you don't have other powers, eg power of attorney, to make decisions for the adult, you can apply for one of two types of orders:
- intervention order - a one-off decision where short-term help is needed, for example, selling a house or signing a document
- guardianship order - the continuous management of affairs is needed. You can apply for a financial or welfare guardianship or both
The Adults with Incapacity Act allows medical treatment to be given to protect or promote the physical and mental health of an adult who is unable to consent. These can be for:
- one-off medical treatment eg an operation
- ongoing treatment through eg their GP or dentist
If you're considering applying for any of these powers we may need to be involved. Your local mental health officer can advise you about this. Contact your local social work office and ask to speak to the mental health officer.
There's a free Scottish Government DVD Making Decisions - Your Rights (for people with learning disabilities). The DVD gives simple information about the Act.