Independent Advocacy and Adults with Incapacity

When someone is subject to any sort of intervention under Adults with Incapacity (AWI) legislation, it is considered good practice to give them access to Independent Advocacy. AWI can be a complicated process involving many different agencies, and an experienced Advocacy Worker can help make the best of the situation by giving you the right information, helping you to explore your options, and representing your interests to the right people at the right time.

Adults with Incapacity:

The Adults with Incapacity (Scotland) Act (2000) provides a legal framework to protect the interests of adults who lack the capacity to make decisions about their own welfare, money and property. The term used for this is ‘Incapacity’, and any action taken under the Adults with Incapacity Act is often referred to as ‘AWI’.

All adults are initially assumed to have the capacity to make decisions. The law states that when someone lacks the capacity to:

Make a decision, or

Act on a decision, or

Communicate a decision, or

Understand a decision, or

Remember a decision,

then they may be judged to be incapable of making competent decisions, and may lack capacity. Local Authority Social Work departments have a statutory duty to assess the needs of anyone who may lack capacity, so Social Work needs to be made aware, and needs to get involved at an early stage.

Assessment:

If Social Workers feel that there is a need for assessment of capacity, a medical practitioner will conduct an interview, or a series of interviews, with the person. The interview questions look at the way the person’s life is now, but also looks at the way their life was before (for example, if someone has never balanced their household budgets in the past, the fact that they cannot balance their household budget now does not demonstrate any sort of incapacity).

The interviews will also be conducted in a way sympathetic to the person’s underlying condition: using short and focused questions with someone affected by stroke; giving someone affected by Huntington’s disease enough time to answer the questions properly.

On the basis of those interviews, the medical practitioner may make decisions about the areas of the person’s life for which they have capacity, and the areas of their life for which they lack capacity: it is not an ‘All-or-Nothing’ decision.

Interventions

If the person is judged to lack capacity, and an intervention of some sort is required to protect the person’s interests, that intervention must reflect the five principles which underpin the legislation:

Any action taken must benefit the person.

Any action taken must be the least restrictive option.

Any action taken must take into account the person’s wishes.

There must be consultation with relevant others.

The person should be encouraged to use their existing skills and develop new skills, rather than having part of their life taken away.

If the person who lacks capacity has already made provision, like a Power of Attorney, then this intervention becomes much simpler. The Attorney will gain authority to make decisions about the person’s care and welfare, or their money and property.

If there is no provision in place, then an application may be made to the courts to gain the authority to make decisions about the person, or to grant access to their money or property:

A Guardianship Order allows either an individual, or if no individual wants to apply the Local Authority, to make decisions about the person’s welfare, money and property, or both. A Guardianship Order is usually applied in a long-term situation where circumstances may change and many decisions may have to be made.

The Access to Funds Scheme allows an individual or organisation to get access to the person’s funds in order to budget properly and help them meet their normal living expenses. This scheme suits people with a stable income and stable outgoings.

An Intervention Order is a one-off order to make a decision about something like housing, going into care, or a medical procedure.

Decisions made by anyone appointed as a Guardian, or as a Withdrawer under the Access to Funds Scheme, are subject to scrutiny by the Office of the Public Guardian (Scotland), and decisions may also be examined by the courts.