Between July and October 2024, the Scottish Government conducted a consultation on the Adults with Incapacity (Scotland) Act 2000. This aimed to gather views on proposed reforms to the legislation, following recommendations from the independent Review of Mental Health and Incapacity Law in Scotland.
In this blog, we aim to explore the key areas of reform, including the proposed changes to the Office of the Public Guardian, amendments to Power of Attorney, and other significant recommendations that arose from the consultation.
Table of Contents
- Understanding the Adults with Incapacity Updated Act
- The Office of the Public Guardian Changes
- Amendments to Power of Attorney
- Additional Recommendations from the AWI Consultation
- Key Takeaways
- Jones Whyte Is Here To Help
- Frequently Asked Questions
Understanding the Adults with Incapacity Updated Act
The proposed changes aim to ensure that the human rights of individuals who lack capacity are respected, safeguarded, and upheld, while also improving their access to justice.
The updated act includes several key provisions that can enhance the protection of vulnerable adults. The act also aims to ensure the will and preferences of the person are followed unless doing so harms the adult.
The Office of the Public Guardian Changes
The Office of the Public Guardian (OPG) has proposed several changes to the Adults with Incapacity Act and these are as follows:
- The Office of Public Guardian will speak to financial guardians to see if they have adhered to the principles, and practitioners are expected to demonstrate in their reports how these principles have been followed.
- It has been recommended that the term ‘continuing’ attorney be updated to ‘financial attorney’.
- A guardian should be identified as a someone with financial, property, and / or welfare powers based on the power agreed by the sheriff.
- It is advised that the powers under section 3(3) be expanded to a discretionary power to issue directions where necessary for the effective implementation of the AWI Act. This would allow guardians and welfare attorneys to request, for example, the Sheriff to instruct a pension provider to transfer payments into a suitable account, minimising distress for all involved.
- The Office of Public Guardian will be able to look into financial guardianships, financial intervention orders, and access to funds.
- The local authority should have the power to investigate:
- Guardianship orders concerning welfare
- Welfare Powers of Attorney
- Welfare-related intervention orders
- Any situations where the personal welfare of incapacitated adult appears to be at risk
- Any concerns regarding the property or financial affairs of an incapacitated adult, excluding financial guardianship orders, financial intervention orders, and access to funds. Along with a continuing power of attorney, where the adult lacks capacity
Amendments to Power of Attorney
As part of the Scottish Government’s consultation, a variety of changes have been proposed to improve the current legislation governing Powers of Attorney.
Below we have outlined the key proposals:
Investigate Financial Matters:
One of the proposals is to allow local authorities to investigate financial concerns related to the actions of continuing attorneys. This will ensure the interests of the Adult are protected and will provide an additional layer of protection.
Clarifying When a Power of Attorney Comes into Effect
It has been proposed that changes will be made around when a Power of Attorney becomes active and when an attorney can begin using their powers. The current provisions in sections 15(3)) set out when a granter has considered how capacity will be determined. This is considered to be vague and open to interpretation.
To address this, the proposed changes ensure that the Power of Attorney document is updated to have clear instructions on how the granter wishes incapacity to be determined before the powers come into effect.
Making It More Affordable For Power of Attorneys
The OPG have been exploring ways to reduce the cost of creating a Power of Attorney, to encourage more people to have one and to ensure its more accessible.
Support for Professionals
It has been proposed there should be increased support for care workers and support workers who assist the incapacitated adults.
Raising Awareness
With Scotland’s ageing population and the growing prevalence of dementia, there are plans to increase awareness around the promotion of putting a Power of Attorney in place.
Training for Power of Attorneys
To help attorneys understand their responsibilities and the principles of the AWI act they will be provided with training. This will mostly likely consist of a short web-based presentation.
Additional Powers to the Office of Public Guardian
The possibility of enhancing the powers of the OPG has been proposed in order to increase protection around a registered Power of Attorney in Scotland.
Additional Recommendations from the AWI Consultation
Here are some additional recommendations that have been proposed:
- Annual reviews of every withdrawer managing the adults finances.
- Proforma powers scheme to grant powers at the start without the need to have additional applications to OPG for changes or additional authority.
- At present, the AWI requires that the application provides a detailed account of the adult’s funds and specifies the exact amounts allocated for each intended use. The new proposal is to remove the need for sums to allow flexibility based on changing needs.
- The reference “wishes their incapacity to be determined” should be placed with more clear and specific instructions.
- The individual will need to certify that they have not been put under pressure or influenced to put the Power of Attorney in place
- Suitable professions e.g. GP’s and paramedics may be authorised to take adults to hospital if necessary, especially if they are unable to make the decision for themselves.
- Splitting the investigatory duties between the Office of Public Guardian and the local authority.
- For any significant changes to a Power of Attorney a new deed will be required to ensure clarity.
- Power of Attorney documents will need to include specific wording to authorise any deprivation of liberty.
All of these recommended changes are aimed at aligning with the AWI Act on human rights law and the UNCRPD.
Key Takeaways
- The Scottish Government had a consultation on the Adults with Incapacity (Scotland) Act 2000.
- This aimed to gather views on proposed reforms to the legislation, following recommendations from the independent Review of Mental Health and Incapacity Law in Scotland.
- The proposed changes ensure that the human rights of individuals with mental or intellectual disabilities are properly respected, protected, and fulfilled.
- The Office of the Public Guardian has proposed several changes to the Adults with Incapacity Act and these include: speaking to financial guardians to see if they have adhered to the principles, updating ‘continuing attorney’ to ‘financial attorney’, and the Office of Public Guardian are looking into financial guardianships, financial interventions orders etc.
- A variety of changes have been proposed to improve the current legislation governing Powers of Attorney.
- Additional Recommendations have been made from the AWI consultation, and they have proposed annual reviews of every withdrawer managing the adults finances; the reference “wishes their incapacity to be determined” has been proposed to be placed with more clear and specific instructions; and split investigatory duties between the OPG and the local authority.
Jones Whyte Is Here To Help
If you are acting as a Power of Attorney for an adult with incapacity and would like to learn more about the updated Incapacity Act, get in touch with Jones Whyte today.
Our experienced and knowledgeable team is here to support you every step of the way. Contact us now for expert guidance.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
