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A Quick Guide to the Adults with Incapacity (Scotland) Act

The Adults with Incapacity (Scotland) Act 2000 is an incredibly important piece of legislation that helps to protect the welfare of adults (and young people over 16 years of age) who have been incapacitated in some way; meaning they cannot make sound decisions for themselves. Whether you are a carer for such an individual or you are inquiring on behalf of a family member or friend, you need to know the basics of this act. Here are some of the things you need to know about this act and the protections it grants.

Who Does This Act Protect?

The act was created to give protection to adults who cannot make (or simply are vulnerable and need support) decisions for themselves under certain circumstances. Some of the people protected by this act include but is not limited to those with:

·       Dementia

·       Mental ill health

·       A learning disability

·       A physical disability that makes communication difficult

It gives the power to a trusted individual to make key choices like financial management, property and accommodation, and medical treatment.

How is This Different to Power of Attorney?

To those with some familiarity of the law, this may look similar to power of attorney. While it is true that many of the powers are similar, it differs in that power of attorney is provisional. Someone who sets up their power of attorney will still have control of things like their medical treatment until an event which incapacitates them. Therefore, power of attorney ties into the AWI Act as it means a person can select who they wish to act as their guardian in this event. A Power of Attorney can also be used in the short term when the Adult gives authority for it to be used. For instance, when an Adult is in hospital and physically can’t deal with matters because they can’t get out of hospital. The Adult can authorise its use to their attorney during their stay in hospital.  The other key difference between a Power of Attorney and a Guardianship order is that an Adult must have capacity (the understanding (even in simple non legalistic language) of the powers that they are granting. If they are unable to understand then a Power of Attorney cannot be granted and families and friends need to apply for a Guardianship Order.

What Do Guardians Need to Take into Consideration?

Guardians are not free to make decisions as they best see fit. There are strict regulations in place that should help them to make an informed decision about what is best for the person with impaired capacity. These include:

·       Benefit – any actions should benefit the person protected by the act and should only be used if the same benefit cannot be achieved by other means

·       Least Restriction – all actions should be to the minimum, and should inhibit the person’s freedom as little as possible

·       Their wishes – every action should be compliant with the person’s wishes. This includes past wishes and present opinions. A person may be able to express their wishes and desires without being capable to make the decision you are considering

·       Consultation – you will have to consult with others such as other guardians, solicitors, or relatives

·       Encouragement – the person must be encouraged to make their own decisions and develop their skills as much as possible

When will You Need the Services of a Lawyer?

If you know an adult with incapacity and are concerned that they are not receiving the care that they should, you can reach out to a lawyer for a confidential conversation about how to proceed. If you are named as a carer or guardian of an adult with incapacity, you may also wish to speak to a lawyer for some advice on how to care for the individual and make decisions in their best interest.

In either scenario, reach out to MM Legal today for the impartial, confidential advice you need.