The Scottish Government recently published its Social Care (Self-directed Support) (Scotland) Bill, which aims to make self-directed support in Scotland a mainstream choice for those receiving care in Scotland. The Government has pledged almost £40 million over the next three years to support the rollout of self-directed support throughout Scotland.
What is self-directed support?
Self-directed support is designed to give those who receive care (supported persons) more power to direct their own care and support, to make more informed decisions about their care and to control their individual care budget.
The Bill provides the following options:-
- direct payments - cash payments from the local authority to the supported person which they use to obtain support;
- individual service fund - the care budget is allocated and paid to the care provider (e.g. the local authority) but the supported person makes decisions on how the budget is spent;
- the local authority receives the individual care budget and decides how this is spent; or
- the supported person chooses a mixture of the above options.
What are the legal implications?
Many people receiving care are not able to manage their own finances or to make informed decisions about their support, and will be relying on relatives or friends to manage their budget on their behalf. However, often those relatives/friends don't have legal authority to be acting on the supported person's behalf.
No one has legal authority to act on another's behalf unless:-
- the supported person grants a Power of Attorney giving them powers to deal with their finances and personal welfare - the supported person must have capacity to understand the nature and extent of what they are doing; OR
- they make a court application for Financial & Welfare Guardianship of the supported person - this is appropriate where the supported person does not have capacity to grant a Power of Attorney. The Guardianship Order will provide powers to deal with the supported person's finances and to make decisions about their personal welfare
If you'd like more information on power of attorney v:s guardianship, click here for more details.
Should I be doing anything?
At TC Young, we have a wealth of experience assisting carers with guardianship applications and queries regarding Powers of Attorney. If you, or someone you know, wish more information on the legal implications of managing self-directed support, contact us.