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Adults with Incapacity (Scotland) Act 2000: Code of Practice for Continuing and Welfare Attorneys

DescriptionCode of Practice for Continuing and Welfare Attorneys under the Adults with Incapacity (Scotland) Act 2000.
ISBN
Official Print Publication Date
Website Publication DateJune 24, 2011

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ISBN 978 1 78045 144 2
DPPAS10238

This document is also available in pdf format (311k)

Errata

An errata was published on 25/11/2015 at paragraph 2.6.

The pdf and html have both been updated within the document to reflect this change.

Contents

Introduction
About this code of practice
Terms used

Chapter 1: About the Adults with Incapacity (Scotland) Act 2000
Who the Act can help
What incapacity means under the Act
How the Act can help
Co-existence of the Act with other measures
Principles to be followed
Communicating with the person
Deciding when a person needs the help of the Act
Bodies involved in the regulation of attorneys
Provisions relating to nearest relative
Displacement or withholding of information from nearest relative
Legal Aid
Limitation of liability
How does the Act protect the adult from abuse?
For further information and advice

Chapter 2: Creating a power of attorney
What is a power of attorney?
Statutory requirements for making a valid power of attorney
Who can be an attorney?
Solicitors or organisations as attorneys
Appointment of joint or substitute attorneys
Possible powers to be included in a continuing power of attorney
Possible powers that may be included in a welfare power of attorney
Involvement of prospective attorney at time of granting
Granting sufficient powers for an attorney to act
Costs of acting as an attorney
Revocation (cancellation) of a power of attorney

Chapter 3: Exercising powers of attorney (continuing and welfare)
What responsibilities do attorneys have?
Duty of care
Fiduciary duty (position of trust)
Duty to keep records
Duty of confidentiality
Liability
Action on becoming aware of the adult's incapacity
Informing the adult and others
What to do if the adult has communication difficulties
Holding regular reviews
If you think action is needed - apply the principles
Check your powers
Make sure you can be contacted
Responsibility to act
What if you encounter resistance to the exercise of your powers?

Chapter 4: Specific guidance on exercising continuing powers of attorney
Managing the person's finances
Review the person's property and financial affairs
Find out if anyone else has powers over the person's finances and/or property
Find out if anyone has welfare powers in relation to the person
Paying for community care services
Assessing the need for change
Taking stock of the need and timescale for future changes
Obtaining specialist advice
Updating your file
If you think that action needs to be taken
Check your powers
Setting out your proposals for change
Recording action taken
Ongoing functions as a continuing attorney
Monitor the adult's property and financial affairs
Assessing the need for further action
Seeking the advice of the Public Guardian
What to do where there are conflicting views on a proposed action or decision
Conflict of interest affecting you as attorney
What to do where your powers are insufficient
What if there is a complaint against you
Possible court proceedings in the event of a complaint
Supervision by the Public Guardian

Chapter 5: Specific guidance on exercising welfare powers of attorney
Managing the adult's welfare
Reviewing current arrangements and needs
Find out if anyone has powers over the person's property and financial affairs
Community care services
Assessing the need for change
Obtaining specialist advice
Updating your file
If you think that action needs to be taken
Check your powers
Setting out your proposals for change
Recording action taken
Ongoing functions as a welfare attorney
Monitor the adult's personal welfare
Deciding the need for further action
Seeking the advice of the local authority and MWC
What to do when there are conflicting views on a proposed intervention
Conflict of interest affecting you as attorney
What to do where your powers are insufficient
What if there is a complaint against you
Possible court proceedings in the event of a complaint
Supervision by the local authority
Purposes of supervision
Supervision regulations
Visiting
Provision of information

Chapter 6: Stopping being an attorney
Not getting started
Resigning
Other circumstances that bring powers to an end

Chapter 7: Pre-act attorneys and attorneys under the law of another country
If you were an attorney before the Act came into force
Attorneys appointed under the law of another country
Relationships with the law of other countries and jurisdictions

Annex 1: A guide to communicating with the person with impaired capacity

Annex 2: Useful addresses