This Act makes substantial changes to the law relating to people who may be legally appointed to act for an adult (over 16) who is incapable of making legal decisions for himself or herself.

The list of possible appointments under the Act is:

• A continuing attorney appointed by an individual, while capable, to manage property and/or financial affairs. This may come into effect immediately and continue after incapacity or may come into effect upon incapacity.
• A welfare attorney appointed by an individual, while capable, to manage welfare matters after loss of capacity.
• A person authorized by The Public Guardian to use the funds of an incapable adult for the benefit of that adult.
• A guardian who may have financial and/or welfare powers and is appointed by the sheriff.
• A person authorized under an intervention order (welfare and/or financial) made by the sheriff to deal with a specific issue.
• The managers of authorized establishments, where there is no one else to manage an adult’s finances, may be authorized to manage a resident’s finances.

In addition, the Act makes provision for doctors to treat an incapable adult without consent.

The provisions relating to continuing powers of attorney, welfare powers of attorney and authority to deal with funds came into force on 2nd April 2001.

The provisions relating to doctors giving medical treatment without consent will come into force in 2002.

The provisions relating to guardianship orders which will replace tutors-dative, curators bonis and mental health guardians, come into force in April 2002.

The provisions relating to intervention orders come into force in April 2002.

The provisions relating to management of funds by managers of establishments come into force in April 2003.

The definition of “incapable” is: incapable of acting or making decisions or communicating decisions or understanding decisions or retaining the memory of decisions in relation to any particular matter, by reason of mental disorder or of inability to communicate due to physical disability.

The Act contains general principles:

Principle 1 – Benefit

• Any person intervening in the life of the incapable adult must be satisfied that there is a benefit to the adult and that such benefit cannot be achieved without the intervention.

Principle 2 – Minimum Intervention

• The intervention must be the least restrictive option in relation to the freedom of the incapable adult.

Principle 3 – Take Account of the Wishes of the Adult

• The views of the incapable adult must be sought, by any means possible.

Principle 4 – Consultation With Relevant Others

• The views of the nearest relative, the primary carer, any person already appointed to act for the adult and any other person who appears to be relevant must be sought.

Principle 5 – Encourage the Adult to Exercise Whatever Skills he or She Has

• The adult must be encouraged to exercise whatever skills he or she has concerning property, financial affairs or personal welfare, and to develop new such skills.

Continuing and Welfare Attorneys

The Act creates two new types of power of attorney. A power of attorney is a document signed by an individual when he or she has legal capacity, authorizing another person or persons to act on his or her behalf. This Act only applies to financial powers of attorney intended to continue after a person has lost legal capacity or powers of attorney relating to welfare matters (which can only come into effect after loss of legal capacity).

The general principles in Section 1 apply to continuing and welfare attorneys.

Welfare Powers of Attorney

A welfare power of attorney must:

It cannot be used until the granter has lost legal capacity in relation to the matters covered by the power of attorney.

It can only be given to an individual who may not be an officer of the local authority.

A welfare attorney may not:

• Place the granter in hospital for treatment of a mental disorder against his or her will.
• Give consent to any treatment covered by The Mental Health (Scotland) Act 1984.

A continuing or welfare power of attorney may contain a condition that The Public Guardian shall not register it until the occurrence of a particular event

Continuing and welfare attorneys are required to keep records of the exercise of their powers.

The Sheriff may make orders:

• that a continuing attorney shall be subject to supervision by The Public Guardian
• that the continuing attorney submit accounts to The Public Guardian for audit
• that the welfare attorney shall be subject to supervision by the local authority
• that any of the powers of a continuing or welfare attorney be revoked
• that a continuing or welfare power of attorney be revoked

Authority to Intromit With Funds

The Act makes a new provision whereby an individual may apply to The Public Guardian for authority to intromit (deal with) the funds of an incapable adult.

The person who wishes to be appointed must complete a form available from The Public Guardian. The application must specify:

• The purpose for which the funds will be used
• The names and addresses of the nearest relative and primary carer of the adult
• The account from which money is to be transferred and an undertaking to open the designated account.

The application must be accompanied by a medical certificate certifying incapacity.

The Public Guardian must notify the adult, the nearest relative and the primary carer of the application and they may raise objections. The Public Guardian may refer to application to the sheriff for determination. There is a right of appeal against a decision to grant or refuse an application.

If the application is granted, The Public Guardian will issue a certificate of authority stipulating that the withdrawer may open a designated account and how much money may be transferred from the adult’s account to that designated account and at what intervals. The authority may be for up to 3 years.

A designated account may not be overdrawn and the withdrawer must keep records of transactions on the account.

A person authorized to intromit with funds is subject to the general principles in Section 1 of the Act.

Guardianship Orders

 Where there is a need for continuing intervention, a person claiming interest in the incapable adult may apply to the sheriff to be appointed as a guardian. Two medical reports certifying incapacity are required. In addition, for welfare guardianship, a report from a Mental Health Officer (mental disorder) or Chief Social Work Officer (all other cases) is required. For financial guardianship, a report from a person with sufficient knowledge of the appropriateness of the order and the suitability of the nominee is required. It is possible to appoint 2 or more persons as joint guardians or a guardian and a substitute. The court will consider the suitability of the nominated guardian and issues such as:

A guardian will usually be appointed for 3 years, but other periods are possible.

Guardians with financial powers will be subject to supervision and scrutiny by the Public Guardian. Guardians with welfare powers will be subject to supervision by the local authority and subject to scrutiny by either the local authority or the Mental Welfare Commission.

The local authority has a duty to apply for guardianship where it appears necessary, but no one else applies.

A guardian is subject to the general principles in Section 1 of the Act.

Intervention Orders

Where there is a need for intervention, but not on a continuing basis, a person claiming interest may apply to the sheriff for an intervention order authorizing the particular intervention. These orders may cover welfare and/or financial matters. The reports required are the same as for guardianship orders.

A person acting under an intervention order is subject to the general principles in Section 1 of the Act.

Management of Funds by Managers of Residential Establishments

If there is no one to manage the funds of an incapable adult, the manager of a residential establishment may obtain a medical certificate certifying that the resident is incapable of managing his or her own funds. The manager then notifies the supervisory body that he or she intends to manage the resident’s funds. The medical certificate must be renewed after 3 years. The manager is permitted to deal with the following matters: