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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.

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Self directed supporting capacity matters

Self Directed Supporting Capacity Matters


Introduction
Introduction

  • Adults with Incapacity (Scotland) Act 2000

  • How will SDS and the Act intertwine?

  • Personalised legal services


Main resources under the act
Main resources under the Act

  • Joint bank accounts

  • Powers of Attorney

  • Access to Funds

  • Guardianship & Intervention Orders

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5 general principles
5 General Principles

  • Benefit

  • Minimum Intervention

  • Wishes of the adult

  • Consultation

  • Encourage exercise of capacity

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Power of attorney what is it
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
Who can grant a POA?

  • Individual

  • Age 16 or over

  • Must have full legal capacity



What is capacity1
What is “Capacity”?

  • Acting

  • Making

  • Communicating

  • Understanding

  • Retaining the memory of DECISIONS

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Who can be an attorney
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
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
Advantages

  • Don’t need Court or OPG consent

  • Informal

  • Quick to prepare

  • Can be tailored to suit individual requirements

  • CHOICE & CONTROL


Style continuing powers
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
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
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
In light of SDS….

  • Specific authorisation for Attorney to accept direct payments?


Registration
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
Guardianship

  • Most restrictive option

  • Powers – welfare and financial

  • Differences between POA


Who can apply for guardianship
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
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
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
STATISTICS

Primary causes of incapacity and duration of orders granted in local authority and private guardianship


Indefinite order
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
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
Comparison

Power of Attorney

Guardianship

Lack of capacity

Restrictive

Welfare Powers

Financial Powers

Sheriff Court

LEGAL AID!

  • Capacity

  • Choice & Control

  • Welfare powers

  • Financial powers

  • Informal

  • £400


Other options
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


Www caritaslegal co uk under the shade you flourish
www.caritaslegal.co.ukUnder the shade you flourish


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