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Different ways of managing someone’s affairs in Scotland

There are different ways of managing someone’s affairs.

Which option is appropriate depends on whether the person you are looking after can currently make their own decisions (which is called having mental capacity) or whether they are unable to make their own decisions (which is called lacking mental capacity).

See the section called “Mental capacity in Scotland” for further information on mental capacity.


The person I look after can currently make their own decisions but wants some help managing their money

Appointee

If the person you look after needs help to manage their benefits, and there is not already a relevant power of attorney in place, you could apply to be their appointee.

This means that you become responsible for making and maintaining any benefit claims on behalf of the person you look after.

For more information on appointees you can visit the gov.uk website.

Third party agreement (mandate)

If the person you look after wants help managing their bank account then they could make a third party mandate with their bank. This means that they name a specific person (for example you as their carer), and this gives you the authority to manage the bank account. You should speak to the bank of the person you look after to request a third party mandate arrangement.

General power of attorney

If the person you look after wants help managing their bank account and other financial affairs then they could grant an general power of attorney to a specific person (for example you as their carer). This means that the specific person has the authority to deal with any financial affairs which the general power of attorney specifies. If the person you look after wants to grant a general power of attorney they could contact a local advice centre to see if they can help or they could contact a legal adviser.

Note: Both third party mandates and general power of attorney’s can only be used while the person you look after can make their own decisions (so has mental capacity). For example, they may want you to act for them while they are in hospital or unable to get out and about. If they are unable to make their own decisions (so if they lack mental capacity) neither of these will be valid. If you think the person you look after might be unable to make their own decisions in the future see the section called “The person I look after can currently make their own decisions but wants to make arrangements in case they are unable to make their own decisions in the future”.

Continuing power of attorney

If the person you look after wants help managing their bank account and other financial affairs, both now and if they are unable to make decisions in the future, then they could grant a continuing power of attorney to a specific person (for example you as their carer). This means that the specific person has the authority to deal with any financial affairs which the continuing power of attorney specifies. This can be used as soon as it is registered, and can continue to be used if the person you look after becomes unable to make their own decisions (so if they lack mental capacity). See below for some further information on continuing power of attorneys.

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The person I look after can currently make their own decisions but wants to make arrangements in case they are unable to make their own decisions in the future

Power of attorney

If the person you look after can currently make their own decisions but wants to make arrangement in case they are unable to make decisions in the future then they could make a power of attorney. This means that they appoint a specific person (for example you as their carer) to make certain decisions on their behalf.

There are two types of power of attorney:

  • continuing power of attorney (sometimes called a financial power of attorney) - which covers things such as bank accounts, paying bills, collecting benefits or pensions and selling a home
  • welfare power of attorney – which covers things such as medical care and social care

The person you look after can make just one type of power of attorney, or both types of power of attorney.

Note: A continuing power of attorney can be used before the person you look after is unable to make their own decisions, if they so wish. However a welfare power of attorney can only be used if the person you look after is unable to make their own decisions.

For more information about power of attorney’s, including how to make a power of attorney, how to register a power of attorney and the fees involved, you can view the Office of the Public Guardian (Scotland) website.

If the person you look after wants to grant a power of attorney and wants some help with this, they could contact a local advice centre to see if they can help, or they could contact a legal adviser.

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The person I look after is unable to make their own decisions

Appointee

If the person you look after is unable to make their own decisions and needs help to manage their benefits, then if there is not already a continuing power of attorney in place, you could apply to be their appointee.

This means that you become responsible for making and maintaining any benefit claims on behalf of the person you look after.

For more information on appointees you can visit the gov.uk website.

Access to funds scheme

If the person you look after is unable to make their own decisions, needs help to manage their bank account and if there is not already a continuing power of attorney in place, then you could apply for authority to access and manage their funds (called the access to funds scheme).

For more information on the access to funds scheme, including how to apply, who you need to notify, and the fees involved, you can visit the Office of the Public Guardian (Scotland) website.

Guardianship order / intervention order

If the person you look after is unable to make their own decisions, and there is not already a relevant power of attorney in place, then if it is ongoing decisions that you want to manage, you could apply for a guardianship order. This means that if your application is successful you will have the authority to make certain decisions on their behalf.

There are two types of guardianship order:

  • guardianship order for financial affairs – which covers things such as bank accounts, paying bills, collecting benefits and pensions and selling a home
  • guardianship order for welfare – which covers things such as medical care and social care

You can apply to be just one type of guardian, or both types of guardian.

For more information on guardianship orders, including how to apply and the fees involved, you can visit the Office of the Public Guardian (Scotland) website.

If the person you look after is unable to make their own decisions, and there is not already a relevant power of attorney in place, then if it is just a one-off decision that needs making, you could apply for an intervention order.

There are two types of intervention order:

  • intervention order for financial affairs – which covers things such as bank accounts, paying bills, collecting benefits and pensions and selling a home
  • intervention order for welfare – which covers things such as medical care and social care

For more information on intervention orders, including how to apply and the fees involved you can visit the Office of the Public Guardian (Scotland) website.

If you want to apply for a guardianship order or intervention order and want some help with this, you could contact a local advice centre to see if they can help, or you could contact a legal adviser.

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Mental capacity in Scotland

The Adults with Incapacity (Scotland) Act 2000 provides the legal framework for making decisions on behalf of people who lack the mental capacity to make decisions themselves.

The Adults with Incapacity (Scotland) Act 2000 sets out five ‘statutory principles’:

  • any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it
  • any action or decision taken should be the minimum necessary to achieve the purpose – it should be the option that restricts the person’s freedom as little as possible
  • in deciding if an action or decision is to be made, and what that should be, account must be taken of the present and past wishes and feelings of the person, as far as this may be ascertained
  • the decision maker should take account of the views of others with an interest in the person’s welfare
  • encourage the person to use existing skills and develop new skills

What is mental capacity?

Mental capacity is the ability to make a decision, whether it is an everyday decision such as what to wear, or a more important decision such as where to live.

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How is mental capacity assessed?

There is a two stage test to work out if someone lacks capacity.

Stage one: Does the person have a mental disorder or severe communication difficulty because of a physical disability? This could include dementia, learning disabilities, mental illness, brain damage etc.

Stage two: Has the mental disorder or severe communication difficulty made the person unable to make the decision or decisions in hand? A person is unable to make a decision for themselves if they are incapable of:

  • acting on decisions or
  • making decisions or
  • communication decisions or
  • understanding decisions or
  • retaining the memory of decisions
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Who assesses mental capacity?

Normally the local authority social work department in the area where the person you look after lives will be involved in initially assessing the needs of a person who may have mental incapacity. In most cases, the person’s GP or consultant will also be involved in assessing capacity.

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What can I do if I disagree with a mental capacity assessment decision?

If you disagree with a mental capacity assessment decision, for example if the person you look after is assessed as lacking mental capacity when you think they have mental capacity, there are various ways you can try and resolve this.

You can raise the matter with the person who carried out the assessment and ask them to give reasons why they believe the person lacks mental capacity to make the decision, and ask them to provide objective evidence to support that belief.

You could try and get a second opinion from an independent professional and/or discuss this with the Mental Welfare Commission.

If you cannot resolve the disagreement then you may be able to apply to the Court of Session, who can make a decision as to whether a person has mental capacity.

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What happens if the person I look after is assessed as lacking mental capacity?

If the person you look after is assessed as lacking mental capacity, then any decision made on their behalf should be done in accordance with the five statutory principles (outlined here). This is the case whether the person making the decision is a carer, a power of attorney, a guardian or intervener, or a professional.

Who should actually make the decision will depend on the decision in question and on whether there is anyone with the legal right to make the decision.

If the decision is an everyday decision then the person most directly involved with the person should be the decision maker. For example, if you help the person you look after get dressed, you will make the decision as to what they wear.

If the decision is about property or financial affairs and you or another family member or friend has a continuing power of attorney or a guardianship or intervention order for financial matters, then you or the family member or friend should be the decision maker.

If the decision is about health or welfare and you or another family member or friend has a welfare power of attorney or a guardianship or intervention order for welfare, then you or the family member or friend should be the decision maker.

If there is no power of attorney or guardian or intervener then the professional involved should be the decision maker.


Medical decisions

If the person needs immediate treatment to save their life, staff will act immediately.

Where non-urgent medical decisions are needed and you have a welfare power of attorney or guardianship, you can consent to treatment on their behalf.

If there is no welfare power of attorney or guardianship, a doctor will make an assessment of capacity to consent to treatment. If the doctor thinks the person cannot consent, s/he will complete a "section 47" certificate. This allows the doctor and other staff to give treatment required.

If you are welfare power of attorney or guardian and withhold consent to treatment, the doctor can ask the Mental Welfare Commission to appoint an independent doctor to give another opinion. Depending on whether disagreement still exists, and the urgency of treatment required, the law may require an intervention order from the Sheriff Court.

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Different ways of managing someone’s affairs in England and Wales

There are different ways of managing someone’s affairs.

Which option is appropriate depends on whether the person you are looking after can currently make their own decisions (which is called having mental capacity) or whether they are unable to make their own decisions (which is called lacking mental capacity).

See the section called “Mental capacity in England and Wales” for further information on mental capacity.


The person I look after can currently make their own decisions but wants help managing their money

Appointee

If the person you look after needs help to manage their benefits and there is not already a lasting power of attorney in place, you could apply to be their appointee.

This means that you become responsible for making and maintaining any benefit claims on behalf of the person you look after.

For more information on appointees you can visit the gov.uk website.

Third party agreement (mandate)

If the person you look after wants help managing their bank account then they could make a third party mandate with their bank. This means that they name a specific person (for example you as their carer), and this gives you the authority to manage the bank account. You should speak to the bank of the person you look after to request a third party mandate arrangement.

Ordinary power of attorney

If the person you look after wants help managing their bank account and other financial affairs then they could grant an ordinary power of attorney to a specific person (for example you as their carer). This means that the specific person has the authority to deal with any financial affairs specified in the ordinary power of attorney. If the person you look after wants to grant an ordinary power of attorney they could contact a local advice centre to see if they can help or they could contact a legal adviser.

Note: Both third party mandates and ordinary power of attorneys can only be used while the person you look after can make their own decisions (so has mental capacity). For example, they may want you to act for them while they are in hospital or unable to get out and about. If they are unable to make their own decisions (so if they lack mental capacity) neither of these will be valid. If you think the person you look after might be unable to make their own decisions in the future see the section called “The person I look after can currently make their own decisions but wants to make arrangements in case they are unable to make their own decisions in the future”.

Lasting power of attorney

If the person you look after is 18+ and wants help managing their bank account and other financial affairs, both now and if they are unable to make decisions in the future, then they could grant a lasting power of attorney for property and financial affairs to a specific person (for example you as their carer). This means that the specific person has the authority to deal with any financial affairs which the lasting power of attorney specifies. This can be used as soon as it is registered, and can continue to be used if the person you look after becomes unable to make their own decisions (so if they lack mental capacity). See below for some further information on lasting power of attorneys.

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The person I look after can currently make their own decisions but wants to make arrangements in case they are unable to make their own decisions in the future

Lasting power of attorney

If the person you look after is 18+ and can currently make their own decisions but wants to make arrangement in case they are unable to make decisions in the future then they could make a lasting power of attorney. This means that they appoint a specific person (for example you as their carer) to have the authority to make certain decisions on their behalf.

There are two types of lasting power of attorney:

  • power of attorney for property and financial affairs - which covers things such as bank accounts, paying bills, collecting benefits or pensions and selling a home
  • power of attorney for health and welfare – which covers things such as medical care and social care

Note: A property and financial affairs lasting power of attorney can be used before the person you look after is unable to make their own decisions, if they so wish. However a health and welfare lasting power of attorney can only be used if the person you look after is unable to make their own decisions.

For more information about lasting power of attorneys, including how to make a lasting power of attorney, how to register a lasting power of attorney and the fees involved, you can view the gov.uk website.

If the person you look after wants to grant a lasting power of attorney and wants some help with this, they could contact a local advice centre to see if they can help, or they could contact a legal adviser.

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The person I look after is unable to make their own decisions

Appointee

If the person you look after is unable to make their own decisions and needs help to manage their benefits, then if there is not already a lasting power of attorney in place, you could apply to be their appointee.

This means that you become responsible for making and maintaining any benefit claims on behalf of the person you look after.

For more information on appointees you can visit the gov.uk website.

Court appointed deputy

If the person you look after is unable to make their own decisions and needs help to manage more than just their benefits, then if there is not already a lasting power of attorney in place, you could apply to become their court appointed deputy. This means that if your application is successful you will have the authority to make certain decisions on their behalf.

There are two types of court appointed deputy:

  • court appointed deputy for property and financial affairs – which covers things such as bank accounts, paying bills, collecting benefits and pensions and selling a home
  • court appointed deputy for personal welfare – which covers things such as medical care and social care

You can apply to be just one type of court appointed deputy, or both types of court appointed deputy, but it is worth noting that it is less common for personal welfare court appointed deputy applications to be successful.

For more information on court appointed deputies, including how to apply to become a court appointed deputy, who you need to notify about your application and the fees involved, you can visit the gov.uk website.

If you want to apply to be a court appointed deputy and want some help with this, you could contact a local advice centre to see if they can help, or you could contact a legal adviser.

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Mental capacity in England and Wales

The Mental Capacity Act 2005 provides the legal framework for making decisions on behalf of people who lack the mental capacity to make decisions themselves.

The Mental Capacity Act 2005 sets out five ‘statutory principles’:

  • a person must be assumed to have capacity unless it is established that they lack capacity
  • a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
  • a person is not to be treated as unable to make a decision merely because they make an unwise decision
  • an act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
  • before the act is done, or the decisions is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

There is a Mental Capacity Act Code of Practice which explains the Mental Capacity Act 2005 in detail.


What is mental capacity?

Mental capacity is the ability to make a decision, whether it is an everyday decision such as what to wear, or a more important decision such as where to live.

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How is mental capacity assessed?

There is a two stage test to work out if someone lacks mental capacity.

Stage one: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? This could include dementia, learning disabilities, mental illness, brain damage etc.

Stage two: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? A person is unable to make a decision if they cannot:

  • understand information about the decision to be made
  • retain that information in their mind
  • use or weigh that information as part of the decision making process
  • communicate their decision
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Who assesses mental capacity?

Normally, the person who is involved with the particular decision which needs to be made is the one who would assess mental capacity.

If the decision is a complex one then a professional opinion might be necessary, for example the opinion of a psychiatrist, psychologist, social worker etc.

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What can I do if I disagree with a mental capacity assessment decision?

If you disagree with a mental capacity assessment decision, for example if the person you look after is assessed as lacking mental capacity when you think they have mental capacity, there are various ways you can try and resolve this.

You can raise the matter with the person who carried out the assessment and ask them to give reasons why they believe the person lacks mental capacity to make the decision, and ask them to provide objective evidence to support that belief.

You could try and get a second opinion from an independent professional.

If you cannot resolve the disagreement then you may be able to apply to the Court of Protection, who can make a decision as to whether a person has mental capacity.

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What happens if the person I look after is assessed as lacking mental capacity?

If the person you look after is assessed as lacking mental capacity, then any decision made on their behalf should be done in their ‘best interests’. This is the case whether the person making the decision on behalf of the person lacking capacity is a carer, a lasting power of attorney, a court appointed deputy, or a professional.

Who should actually make the best interest decision will depend on the decision in question and on whether there is anyone with the legal right to make the decision.

If the decision is an everyday decision then the person most directly involved with the person should be the decision maker. For example, if you help the person you look after get dressed, you will make the decision as to what they wear.

If the decision is about their health and wellbeing and you have lasting power of attorney for health and welfare or are the court appointed deputy, you should be the decision maker.

If the decision is about property or financial affairs and you have lasting power of attorney for property and financial affairs or are the court appointed deputy for property and financial affairs, you should be the decision maker.

If there is no lasting power of attorney or court appointed deputy in place, the professional involved should be the decision maker.

When making the best interest decision, if it is practical and appropriate to do so, the decision maker should consult any lasting power or attorney or court appointed deputy (if the power of attorney or court appointed deputy does not have the relevant authority to be the decision maker themselves – ie a power of attorney for property and financial affairs should still be consulted about a decision relating to health and welfare), anyone who is caring for the person, any close relatives and friends, and anyone else who is interested in the welfare of the person you look after.

When making the best interest decision, the decision maker should also take into account the past and present wishes and feelings of the person you look after.

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