Transcript Self Directed Supporting Capacity Matters

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
Least
restrictive
• Powers of Attorney
Most
restrictive
• Access to Funds
• Guardianship &
Intervention Orders
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5 General Principles
1.
2.
3.
4.
5.
Benefit
Minimum Intervention
Wishes of the adult
Consultation
Encourage exercise of capacity
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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
Attorney
of
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
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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
Don’t 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
doesn’t 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
Primary causes of incapacity and duration of orders granted in local authority and
private guardianship
Cause of incapacity
Acquired
Brain Injury
Alcohol
related
brain
disorder
Dementia
Alzheimer’s
Learning
Disability
Mental
Illness
Other
Totals
%
Duration
Up to and including 3 years
9
24
62
83
18
3
199
44%
Greater than 3 but including 5
years.
10
7
37
30
5
1
90
20%
Greater than 5 years.
0
0
12
6
1
0
19
4%
Indefinite
3
6
104
20
5
2
140
31%
Totals
22
37
215
139
29
6
448
% of all orders
5%
8%
48%
31%
6%
1%
100%
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
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