The Adults with Incapacity (Scotland) Act 2000: Learning From Experience

Published: 28 Oct 2004

This report presents findings from a project examining the operation of Parts 2, 3 and 6 of the Act, which explored implementation, usage levels and people's experiences of using the legislations.

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140 page PDF

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The Adults with Incapacity (Scotland) Act 2000: Learning From Experience
Page 18

140 page PDF

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THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE


1 Once registered, a continuing POA can come into effect at any time, and a welfare POA can only come into effect when the granter no longer has relevant capacity. The numbers of POA registered will, therefore, always be higher than the number in operation.

2 Rates per 100,000 population throughout this summary are based on adults defined as being 16 years old and over and GROS mid-year estimates of population.

3 The AWI Part 1 principles state that all decisions made on behalf of an adult with impaired capacity must: benefit the adult; be the least restrictive intervention to achieve that benefit; take into account the past and present wishes and feelings of the adult in so far as they can be ascertained by any means of communication whether human or by mechanical aid as appropriate to the adult; take into account the views of the relative or primary carer of the adult, and others with an interest, in so far as it is practical and reasonable to do so; encourage the adult to use existing skills or develop new ones.

4 The documents referred to in this chapter are available on the website of the SLC ( or the Scottish Executive AWI webpages (

5 Section 3(4) makes provision for the appointment of a 'safeguarder' by the sheriff. In all applications and proceedings under the Act, the sheriff is required to consider whether it is necessary to appoint a safeguarder. The appointment of a safeguarder is in addition to, and does not replace, any existing powers to appoint someone to represent the interests of the adult, such as a curator ad litem. The purpose of the safeguarder is to convey the views of the adult to the sheriff.

6 In the Act, an adult is defined as someone aged sixteen year old or over, which is the basis for this comparison of usage rates with 100,000 of the population in a local authority area per GROS mid-year estimates.

7 As these cases were rare and complex, no further reference is made to details which may identify persons affected.

8 The Scottish Executive was conducting a consultation on this issue at the time of writing.

9 This represents one in six Citizens Advice Bureaux across Scotland.

10 Under Section 3 (3) of the AWI legislation, the attorney can, however, apply to the sheriff for directions.

11 At the time the consultancy was being completed the Scottish Executive was seeking views on the possible extension of the classes of countersignatories.

12 The complexities of cross-border working between Scotland and England and Wales were referred to in the context of applications. Although it was not a case in the research sample, an instance was described of an action in relation to someone who had been living in England but had returned to Scotland. This had required the involvement of both the Office of the Public Guardian in Scotland and the Court of Protection for England and Wales.

13 Section 58(3) the Act does make provision for a sheriff to treat an application for guardianship as an application for an intervention order if he or she is satisfied that an intervention order is sufficient.

14 Part D of the Mental Health Officer's Report to Accompany Application for Guardianship (Regulation 4(a), Schedule 2), concerned with the appropriateness of the order applied for, does require the MHO to indicate that they have "read the application, have taken note of the powers sought and the period of guardianship being applied for".

15 On 2 July 2004 the Minister announced changes to Part 5 of the Act to allow healthcare professionals, other than registered medical practitioners, to issue certificates of incapacity under section 47, provided they have the necessary skills and expertise to assess capacity. The maximum duration for a certificate will be increased from one to three years in certain circumstances. These changes will be brought about when a suitable legislative vehicle becomes available.

16 In one case the immediate outcome of the MHO's intervention was a decision to pursue financial POA. Possibly because of a delay in preparing the papers the adult was felt to no longer have capacity to grant POA so a financial guardianship order was applied for and obtained.

17 Based on their own experience, the view of the OPG is that guardians do not seem to have been briefed or prepared in advance of being appointed with regard to their duties, particularly the requirements to complete an inventory, management plan and accounts.

18 Shortly before the end of the consultancy the Scottish Executive issued a consultation document seeking comments on a proposal to extend the intervals between visits to six months.

19 The OPG does risk assess individual cases and will reduce the level of monitoring where it is appropriate.

20 Recent guidance has been issued by the Social Work Services Inspectorate (2004) of the Scottish Executive, which seeks to clarify the circumstances under which an intervention under Part 6 should be considered by the local authority.

21 'Other Incapacity' includes all cases where diagnosis is either of a combination of factors e.g. Acquired Brain Injury and Korsakoff's psychosis, or where the precise diagnosis is unclear.