In the final part of our series on the Adults with Incapacity Act for Scotland (AWI), we look at important issues relating to power of attorney (PoA), guardianship, intervention orders and monitoring bodies.
Power of attorney in Scotland
Part 2 of the AWI sets in place measures to take into account the advanced decisions of individuals should they not be able to make decisions for themselves at some point in the future. This is done by assigning one or more trusted persons to act on their behalf.
In England and Wales, this process is known as lasting power of attorney (LPA). However, in Scotland these roles are known as ‘continuing (financial) power of attorney’ and ‘welfare power of attorney’.
Just as with the Mental Capacity Act (2005) for England and Wales, in Scotland, welfare powers of attorney only become active if/when the individual in question is determined to lack capacity. Meanwhile, the role for property and finances (known as continuing power of attorney) states that ‘You can decide you only want it to begin if you become incapable, and can specify how you want your incapacity to be determined.’
While the terminology may differ from the MCA, it is important to note that under the AWI, the process of assigning powers of attorney must be completed by a solicitor or medical practitioner. This is to ensure the role is assigned properly and to provide a layer of safeguarding prior to submission to the Office of the Public Guardian.
For more information on these roles, see the Scottish government’s Code of Practice for continuing and welfare attorneys.
If an adult has lost capacity and has no assigned attorney in place, then a guardian can be appointed by the local sheriff court to act on their behalf for a specific amount of time. This order can be submitted by any interested party. However, it is strongly recommended that legal advice be sought to determine whether the order is appropriate and in line with the AWI act’s principles.
An intervention order is similar to a guardianship order, but for one-off actions that are of a more urgent nature. The application proceeds to the local sheriff court and can appeal to a higher court if appropriate. The intervention order ends at the completion of the authorised action(s).
Many different bodies have supervisory and monitoring powers relating to the AWI. These include the Office of the Public Guardian, local authorities, sheriff and high courts and Scotland’s Mental Welfare Commission. Each of which has a slightly different responsibilities in how they safeguard and protect adults under the AWI.
- The Office of the Public Guardian provides information around the roles under the AWI. It also further supervises guardianship orders and intervention orders and can investigate any concerns that may be raised.
- The local sheriff courts process applications for guardianship and intervention orders. Meanwhile, high courts may receive appeals.
- The Mental Welfare Commission ensures that the those acting in the role of guardian behave appropriately and in line with the principles of the AWI.
To find out more about the Adults with Incapacity Act (Scotland), please see our other blogs in this series.