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Help for carers

The Commission aims to protect and promote the human rights of people with mental illness, learning disability, dementia and related conditions. We are also committed to providing support to friends and family who are involved in their care.

A carer may be providing support in many different ways.

This could include emotional or practical support, but it can also mean that a carer has certain legal rights and responsibilities.

These include becoming a named person, if the person you care for is detained in hospital or 'sectioned' and nominates you for this role.

Your relative or friend may wish to appoint you as their power of attorney, giving you powers to help them with certain decisions, if they lose the capacity to make these decisions themselves.

You may also be able to apply to become a welfare guardian, if the person you are caring for is unable to make their own decisions. Information on all of these situations is provided below.

It is important to acknowledge that having a caring role can be very difficult. It can place huge physical and emotional stress on people in these situations.

As a relative or friend in a caring role, it is important to have support for yourself, and local carer organisations can provide this. There are links to some of these groups below and they may help you find one in your area:

Carers Trust

Support in Mind

Our advice line is a free phone number (0800 389 6809) carers can call. We can give advice on rights to do with mental health and incapacity law, and care and treatment. We cannot, however, advise on specific legal advice, comment on whether a diagnosis or medication is correct, or take complaints about services.

Being a named person

If someone you care about becomes unwell, they may need to be detained in hospital under the Mental Health Act, or 'sectioned'.

If this happens, they can nominate a 'named person', who will look out for their interests.

This nomination should be written, signed and witnessed.

Some changes to named persons provisions were made under the Mental Health (Scotland) Act 2015 and introduced on 30 June 2017. For a named person nomination made after 30 June 2017 to be valid, the nominated person has to consent in writing to be the named person. The nominated person's consent needs to be witnessed.

Nominations of named persons made before 30 June 2017 will continue to be valid, even if the named person has not agreed in writing.

The named person has the right:

  • to be consulted when certain things happen - such as when a short-term detention, or an application for a compulsory treatment order (CTO) is being considered;
  • to be notified of certain changes to circumstances, for example if a short-term detention is revoked;
  • to receive copies of certain records or information, including the record made if treatment has been given which conflicts with an advance statement
  • to make applications or appeals to the Mental Health Tribunal for Scotland (the Tribunal), to legal representation for this with non-means tested Legal Aid, and to speak and give, or lead evidence at a hearing;
  • to consent to two medical examinations taking place at the same time, if the person who is ill is not capable of giving consent;
  • to ask for an assessment of the ill person's needs from the local authority and/or health board.

When do these rights apply?

You can be nominated as a named person at any time, but your rights as a named person only apply if the person who is ill is being treated under the Mental Health Act, or if there is an application for this to happen. If the person who is unwell is being treated informally, named person rights do not apply.

What if I don't want to be a named person?

If someone nominates you as their named person, you should make sure you understand what that involves. If you do not want to be their named person, you can decide not to consent to this.

If you are already their named person, and decide you no longer want to be, you can refuse to continue to be the named person. If you gave your written consent, you can withdraw that.

What if the person I care for chooses someone else as their named person?

With a couple of exceptions, a person can choose whoever they like to be their named person. If you think that the choice of named person is inappropriate, you can apply to the Tribunal to have the nomination reviewed. The Tribunal will make whatever decision they think is in the ill person's interests.

What if the person I care for is under 16?

The named person will automatically be the parent or guardian, the local authority or carer.

What if the person I care for is not capable of appointing me as their named person?

The 2015 Act has made provisions for people other than a patient to make applications or appeals to the Tribunal about their Mental Health Act Order. These people are called 'listed initiators'. Listed initiators can only make applications or appeals under these provisions if the patient lacks capacity to do so themselves, and if they do not have a named person.

Listed initiators include:

  • The patient's nearest relative
  • The patient's primary carer (if they have one)
  • The patient's welfare guardian (if they have one)
  • The patient's welfare attorney (if they have appointed a welfare attorney, and this is operational)

If the patient does not want their primary carer, or nearest relative, to act as a listed initiator, they can make a written declaration to say they cannot do this.

Where can I find templates for named person and listed initiator documents?

The Scottish Government has provided suggested templates for named persons nominations, declarations and consent on the Mental Health Act forms page.

On this page this is also a template for a person to use to make a declaration that they do not wish their primary carer, or nearest relative, to act as a listed initiator for them.

Named person and listed initiation templates

Further guidance about named persons

This is a link to the Scottish Government's guidance on named persons.

Welfare guardianship

By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them.

Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care.

The welfare guardian might be a relative, friend or a carer. The court can also appoint the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000.

Local authorities have a duty under the Act to supervise all welfare guardians, and to visit the guardian and the adult at regular intervals.

Local authorities also have a duty to make an application for welfare guardianship where it is needed and nobody else is doing so.

 

The Commission's role

This law also gives the Mental Welfare Commission a role in making sure that welfare guardianship works in a person's best interest and is in line with the principles of the Act.

These principles say that any decisions made by a guardian:

  • must be of benefit to the person concerned
  • will only be taken when it is really needed
  • must take into account the wishes of the person
  • should restrict that person's freedom as little as possible
  • should only be taken when the person could not make a decision themselves
  • should involve carers, relatives and people who work closely with the person

We write to every new private guardian to let them know about our role. We visit around 350 individuals a year on welfare guardianship to ensure that the law is working in their best interests.

Financial guardianship

The Adults with Incapacity (Scotland) Act 2000 provides arrangements for making decisions and taking actions to safeguard the personal welfare, property, and financial affairs of adults whose capacity to do so is impaired.

 

Part 6 of the Act allows for an application to be made to the court for:

  • An intervention order authorising a person to take action, or make a decision, of which the adult is incapable.
  • An order appointing a person or office holder as guardian in relation to the adult's property, financial affairs, and personal welfare.
  • An order appointing a person or office holder in relation to a child who will become an adult (age 16) within three months, but such an order will not have effect until the person's 16th birthday.

 

Who can apply?

An application can be made to the court by any person, including the adult, claiming an interest in the property, financial affairs, or personal welfare of the adult. The applicant will, however, be required to satisfy the court as to their suitability to be appointed.

The local authority has a duty to apply where necessary and nobody else is doing so.

The Office of the Public Guardian provides information, advice, and guidance about powers of attorney, access to funds, guardianship, and intervention orders. It can investigate concerns where the property or financial affairs of an adult seem to be at risk. It also has supervisory duties in respect of financial guardianship and intervention orders.

The Mental Welfare Commission is only interested in financial powers where welfare powers have also been applied.

For more information on financial guardianship, please contact the Office of the Public Guardian on 01324 678300

Power of attorney

A power of attorney is authority given by an individual with capacity, known as the Granter, to another person(s), known as the Attorney(s), to deal with aspects of the Granter's affairs. This could relate to financial/property matters and/or personal welfare.

Welfare powers cannot be exercised until the Granter has lost the capacity to make these decisions. The Granter can decide how this decision on capacity is to be made.

The Granter decides which powers they wish to grant, however as these powers will be strictly interpreted the Granter should ensure that the powers granted are specific and cover all the relevant aspects of their affairs.

To make the agreement official, a power of attorney document is completed. This details the powers which the Granter wishes the Attorney to have and must be signed by the Granter. It must be certified by a solicitor or a medical practitioner, and then be registered by the Office of the Public Guardian.

Contact the Office of the Public Guardian on 01324 678300 for more information about power of attorney.

Rights of carers

The Mental Health (Care and Treatment) (Scotland) Act 2003 says a carer is someone who gives a person care and support when they need it.

As a carer, you could be:

  • a husband/wife
  • a partner
  • a friend
  • a relative
  • a neighbour

A person can have more than one carer.

You can care for and support someone in different ways. For example, you might help with shopping, cooking and cleaning. You will more than likely listen to the person, giving them emotional support as they try to manage their situation. You may help them make decisions.

On this website, by 'carer', we mean someone who helps a person because they want to help, and when it is not their job to do this. Sometimes people call workers who give care and support carers (for example, support workers, care workers or home helps), and this can be confusing.

What is a primary carer?

You are a primary carer if you give all, or most, of a person's care and support. If you are one of a number of people who give this kind of care, the person who is being cared for should decide who the primary carer is.

A person can only have one primary carer.

What are my rights as a carer?

When doctors and others decide about an individual's care and treatment they should:

  • find out what you as a carer think
  • think about your rights as a carer
  • give you any information you need, with agreement of the person who are caring for.

You can, if it is appropriate, go to the Mental Health Tribunal and tell them about the care and treatment needs of the person you care for.