While there are legal remedies available for those people who lack capacity to make their own decisions, there are a number of things which can be done in advance to make things easier, both for the sufferer and their carers and family.
The legal framework surrounding this subject is contained in the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007.
The 2000 Act shifted the emphasis away from those looking after the person's finances and affairs to the person himself and introduced the concept of minimum intervention when considering the available remedies. The Act recognises that a person might be incapable of making certain decisions but still be able to decide on other matters, e.g. a decision on where to invest money requires a different level of capacity from deciding what to buy in a shop.
The 2000 Act defines incapacity as being incapable of (1) acting on decisions, (2) making decisions, (3) communicating decisions, (4) understanding decisions and (5) retaining the memory of decisions in relation to any particular matter due to mental disorder or inability to communicate because of physical disability. No-one should be regarded as unable to make or act on a decision unless all practical steps have been taken to assist that person in making that decision or acting on it.
As in many other areas of personal health and welfare, the best policy is to plan ahead and make arrangements for events that may, at a later date, be beyond your control. From a legal perspective a Financial and Welfare Power of Attorney is an extremely useful and helpful document. It gives another person or people, who you trust implicitly, the power to manage your affairs whether that is in relation to your bank account, your house or indeed your personal care. An Attorney must act in accordance with certain principles and safeguards set out by the Act and must consider not just the adult's present wishes but any past wishes or behaviours which would indicate what the person would have wanted or done if he had the capacity to make a decision.
In addition to a Power of Attorney, more particular wishes and directions regarding medical treatment can be contained in an Advance Medical Statement or Living Will, although the Scottish Parliament has not yet passed legislation which gives these legal force.
Deciding whether someone has capacity or not is a delicate matter and needs to be treated with care. In some cases it will be perfectly clear that a person has full capacity and the Power of Attorney can be prepared and completed by a solicitor taking appropriate instructions from the person. If however there is any doubt about capacity then an opinion from a suitably qualified doctor or psychiatrist will be required and in such cases the doctor will be asked to sign a certificate alongside the Power of Attorney confirming that the person both understands the meaning and purpose of the deed and has not been coerced into signing it against his will.
The Later Life Team at Morton Fraser has many years' experience of dealing with these and related matters. Should you wish to explore them further please view here or contact us on the details below.