Step 1 - capacity / incapacity

Establishing the adult’s incapacity / capacity

At the outset of an investigation, the adult’s capacity requires to be determined, as this will tell us whether we can investigate or not. We cannot investigate where an adult has capacity, as this does not fall under the Public Guardian’s remit. An adult is someone who is aged 16 or over.

The Adults with Incapacity (Scotland) Act 2000 defines “incapable” as, being incapable of:

• acting; or
• making decisions; or
• communicating decisions; or
• understanding decisions; or
• retaining the memory of decisions;

by reason of mental disorder or of inability to communicate because of physical disability.

The incapacity/capacity report

We will ask the adult’s GP or consultant to complete a report to establish whether or not the adult involved has capacity. Further guidance for medical practitioners in completing this report is available. We will not give a copy of the report to a third party unless we are required to do so by Law.

There might be occasions where we will make some initial enquiries before receiving the incapacity/capacity report. However if the report confirms that the adult is capable of managing their own finances and of acting to safeguard their own financial interests, then the investigation will cease and the complainer will be advised of this. Where appropriate we will offer advice and guidance to the complainer in terms of any further action they could consider taking, or signpost them to other people or organisations that might be able to assist them, for example the Adult Support and Protection Team at the local authority, or the Mental Welfare Commission