The Mental Capacity Act in practice.
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.
A Lasting Power of Attorney (LPA) is a trusted person (or persons) assigned to make decisions on behalf of someone who lacks capacity to make decisions for themselves. Crucially, LPAs are assigned by an individual while they still have capacity, as a means of preserving their wishes should they become unable to make decisions for themselves at some point in the future.
In the first part of our blog series on the Adults with Incapacity Act (Scotland), we examined the background of the Act, and how it applies the terms ‘adult’ and ‘incapacity’ in context. In this week’s blog, we consider some of the AWI’s guiding principles, alongside the assessment process, and how it differs from the Mental Capacity Act as it applies south of the border.
Mental capacity to litigate refers to an individual’s ability to follow, understand and engage with litigation proceedings. This includes the process of conducting affairs through a solicitor.
The Adults with Incapacity (Scotland) Act 2000 was one of the first laws established under the new Scottish Parliament formed in 1999, and predates the Mental Capacity Act by five years. While the two Acts do share a lot in common, there are also some key differences it is important to be aware of.
Testamentary Capacity refers to an individual’s legal mental capacity to create or amend their Will. In cases where there is either a reasonable belief that the individual may lack capacity to complete their Will, or that there may be challenges to the Will in future, it is best practice to request an Independent Mental Capacity Assessment to safeguard the decision.
An Independent Mental Capacity Advocate (IMCA) is a statutory role under the Mental Capacity Act (2005) that supports a person who lacks capacity to express their wishes around a particular decision.
The Office of the Public Guardian (OPG) has published updated guidance for lay deputies and what they must do to meet the standards of the role. These can be found on the Government website, where there are also additional standards for public authority figures, and professionals who may also be assigned the role of deputy.
Deprivation of Liberty Safeguards (DoLS) is a vital safeguarding process designed to prevent unlawful detention and disproportionate restrictions placed on individuals. It also protects human rights and places the individual at the centre of their care, where no one size fits all.
The causative nexus is an essential part of any mental capacity assessment as it provides a clear rationale for whether the person being assessed has capacity to make a specific decision.