Vulnerable Clients: supported decision making Solely Adults with Incapacity Guardianship, Power of Attorney, Wills & Trusts Trust Management

Caritas POAs 2013

Introduction Adults with Incapacity (Scotland) Act 2000 Focus on personalised care Personalised legal services

Main resources under the Act Joint bank accounts Powers of Attorney Access to Funds Guardianship & Intervention Orders Least restrictive Most restrictive Caritas Legal Limited

Issues for vulnerable clients May be unable to deal with large sums of money or make sound decisions re welfare Inheriting a sum of money may affect means tested benefits Exposed to exploitation by third parties

5 General Principles 1.Benefit 2.Minimum Intervention 3.Wishes of the adult 4.Consultation 5.Encourage exercise of capacity Caritas Legal Limited

Power of Attorney Continuing and Welfare Power of Attorney Individual Age 16 or over Must have full legal capacity

What is “Incapacity”? Acting Making Communicating Understanding Retaining the memory of DECISIONS Caritas Legal Limited

When is it helpful/necessary? To prepare for time if and when unable to make decisions Useful at diagnosis stage of progressive illness as can exercise control over future Where mental illness fluctuates can be used to cover periods of time person is unable to manage

Advantages Don’t need Court or OPG consent Informal Quick to prepare Can be tailored to suit individual requirements CHOICE & CONTROL

The document No prescribed format Must be written and signed by granter All powers must be specified Specify intended to continue upon incapacity Solicitor/advocate/medical practitioner to certify legal capacity and no undue influence

Welfare provision Possibly link in to advance directive i.e to do anything authorised by the Advanced Directive by me…dated…. In light of SDS - Specific authorisation for Attorney to accept direct payments? Check existing POAs and read powers Talk about wishes

Supervision Central Register of all POAs Abuse of POA – Financial Attorneys : OPG – Welfare Attorneys: MWC Duty of care – Diligence and skill of a prudent person in the management of their own affairs

Registration EPOAR

POA Questions

Power of Attorney v Guardianship

Guardianship Most restrictive option Powers – welfare and financial Lack of capacity

Caritas Guardianships 2013

Reports – basis of application Adults with mental disorder – Two Medical Practitioner Reports – Mental Health Officer Report

Process Must be lodged in Court within 30 days of first Report Joint or substitute appointments may be sought Specified period of appointment

Comparison Power of Attorney Capacity Choice & Control Welfare powers Financial powers Informal Private Fee Guardianship Lack of capacity Restrictive Welfare Powers Financial Powers Sheriff Court LEGAL AID!

Guardianship Questions

Parents of a young vulnerable adult Highlight importance of Trusts Help plan for adult child’s future MYTH - “If you have a disabled child you are better to leave them out of your Will” Caritas Legal Limited

Advantages Good way of managing money on behalf of someone who is not able to deal with large sums of money Lessens prospect of vulnerable person being unduly influenced by other people Money is ring fenced from benefits calculations Caritas Legal Limited

Available to advise on :- Schedule 8 reports (Guardianship) The cost of long term care Funding long term care Appealing against a decision on NHS Continuing Care Safeguarding Self Directed Support

Under the shade you flourish Personalised legal services for the protection of vulnerable groups