Adults with Incapacity Reform: Expert Working Group Minutes - April 2026

Attendees and apologies

• Adrian Ward (AW), Subject Matter Expert
• Jennifer Paton (JP), Policy Lead, Law Society of Scotland
• Professor Colin McKay (CM), Professor of Mental Health and Capacity Law, Edinburgh Napier University
• Ian Waitt (IW), Mental Health Officer Service Manager, Social Work Scotland
• Jo Savege (JS), AWI Project Lead, Mental Welfare Commission
• Jude Halford (JH), Consultant Liaison Psychiatry, NHS Lothian
• Maggie Whyte (MW), Clinical Psychology Representative
• Elaine Longwill (EL), Senior Solicitor, SOLAR
• Danielle Rose (DR), Office of the Public Guardian
• Debra Calderwood (DC), Office of the Public Guardian
• Scottish Government Officials

Apologies

• Fiona Brown, Public Guardian
• Alex Ruck Keene KC (ARK), Barrister, 39 Essex Chambers

Items and actions

Welcome and purpose

The Chair welcomed members to the eighth meeting of the Expert Working Group, noted apologies, and welcomed new and returning attendees. 

Agreement of previous minutes

Members confirmed that they were content with the minutes of the previous meeting. No amendments had been received and the minutes were agreed.

Updates on actions

Members were reminded of pre-election restrictions on paper sharing. Verbal discussion with colleagues is permitted.
Work continues on identifying a medical representative from acute care to join the Group.
Models for single-report and two-report guardianship applications are under development.
Options are being explored to strengthen safeguards where interim orders extend beyond six months, balancing human rights considerations and court delays.
One member reiterated concerns that prolonged or repeat interim orders may be incompatible with European Convention on Human Rights requirements and not competent under existing legislation, emphasising the importance of final orders being granted at the earliest possible stage.

Powers of Attorney reform overview

SG Officials introduced the paper on reform of Part 2 of the Adults with Incapacity (Scotland) Act 2000, focused on Powers of Attorney. The paper draws on previous consultations, the Scott Review, operational feedback from the Office of the Public Guardian, and case reviews.

Four overarching objectives were highlighted:
1. Streamlining registration processes
2. Improving accessibility and uptake
3. Increasing clarity around powers and activation
4. Strengthening person-centred safeguards and investigations

SG Officials also clarified the scope of discussion:

Deprivation of liberty, force, detention, covert medication and supported decision-making are being addressed through separate workstreams, although interdependencies are recognised.
The current stage of work is focused on policy intention, while keeping implementation considerations in view.

Proposal 001 – Certification accompanying Powers of Attorney

Discussion
There was broad agreement that terminology matters and should not add confusion for practitioners or the public. Concerns were raised that the term “certificate of autonomous decision-making ability” may be confusing or misleading, particularly as it may appear to refer to ongoing autonomy rather than capacity at the point of granting powers. Alternative approaches suggested included simpler terminology, for example “certificate” without further qualification, and framing certification as relating specifically to capacity to grant Powers of Attorney.
It was also noted that terminology should avoid reinforcing misconceptions about the scope of authority granted, including the importance of referring to “Powers of Attorney” in the plural to reflect that attorneys may act only within the specific powers explicitly granted by the granter.
One Member emphasised that practice often fails to address undue influence and other vitiating factors adequately. Members highlighted the particular risks associated with situations where an individual may appear to have capacity but is nevertheless vulnerable to coercion or undue influence, noting that such cases can be more difficult to identify and assess than those involving more obvious impairment. Support emerged for two separate certificates, one addressing capacity and one addressing absence of undue influence and other vitiating factors.

Agreed / emerging policy intent
Terminology should be simple and accessible, avoiding unnecessary or technical labels.
There was support for referring simply to “certificates”, with statutory or regulatory provision defining what must be certified.
Policy support should be considered for two distinct certification requirements: one addressing the granter’s ability to grant the powers, and one addressing absence of undue influence and other vitiating factors.
Members recognised that separating these elements would improve practice, reduce the risk of oversight, and future-proof the regime as concepts evolve beyond capacity alone.

Proposal 002 – Widening the class of certifiers

Discussion
Members supported widening the class of professionals in principle, subject to safeguards. Consistent themes were that certification should be limited to regulated professionals, that mandatory and proportionate training should be required, and that certifiers must be subject to professional discipline. Clinical psychologists and clinical neuropsychologists were widely regarded as appropriately skilled to assess capacity, particularly where cognitive or emotional factors are relevant.
Medical diagnosis may still require input from a doctor in some cases. Significant concern was expressed about including unregulated roles, such as paralegals. Questions were raised about whether widening the class would meaningfully reduce delays, given that the main bottleneck often lies with Office of the Public Guardian processing rather than access to solicitors. Some members suggested exploring better resourcing and remuneration for general practitioners who undertake certification.

Conflict of interest and safeguarding
Potential conflicts were highlighted where local authority staff might be involved in certification alongside care planning roles.
Suggestions included improved information-sharing mechanisms, such as checks for known safeguarding concerns, rather than making local authorities certifiers.

Agreed / emerging policy intent
Policy intent supports broadening certifiers cautiously, subject to regulation, training and professional accountability.
Any expansion should be justified by real-world impact rather than symbolic change.
Safeguards should prioritise competence and independence over sheer numbers.

Proposals 003 and 004 – Determination of loss of capacity and activation of powers

Discussion
There was strong support for requiring Powers of Attorney deeds to specify how and when capacity is to be determined, resolving the current anomaly where consideration is required but not recorded.
Members cautioned against overly burdensome requirements for repeated professional assessments, particularly where incapacity develops gradually or fluctuates.
Significant concern was raised about extending any role for solicitors in post-registration capacity determinations because of the lack of an ongoing client relationship, unclear solicitor-client status between granter and attorney, and professional ethics and competency issues.

Agreed / emerging policy intent
There was strong support for requiring Powers of Attorney deeds to specify how and when capacity is to be determined where a trigger mechanism is intended.
Any statutory framework must preserve granter choice, be proportionate and workable, and avoid importing guardianship-style processes into a private arrangement.
Members expressed clear caution against assigning post-registration capacity determinations to professionals without an ongoing and appropriate relationship.

Proposal 007 – Parity between guardianship and Powers of Attorney

Discussion
Members acknowledged areas where greater consistency could improve clarity, for example record-keeping and safeguards.
Strong caution was expressed about importing guardianship-style obligations wholesale into a private arrangement.
Concerns included the risk of deterring people from taking on attorney roles and creating disproportionate administrative burdens.
Practical experience from investigations highlighted that misunderstanding of powers is a recurrent issue.

Agreed / emerging policy intent
Any parity should be limited, principle-based and selective.
Powers of Attorney should not be recast as a quasi-public or guardianship-like regime.
Consistency may be appropriate in areas such as safeguards, clarity and investigatory coordination, but not in wholesale duties or supervision.

Proposal 008 – Training and guidance for attorneys

Discussion
There was broad support for improved guidance and accessible learning materials for attorneys.
Members agreed that mandatory training would be difficult to enforce and could have limited impact.
Alternative approaches discussed included enhanced declarations at registration confirming understanding of duties, and clear and accessible guidance at both appointment and activation stages.
The Office of the Public Guardian outlined existing practice, including information leaflets and attorney declarations.

Agreed / emerging policy intent
Policy emphasis should be on information, guidance and awareness rather than mandatory training.
Improved declarations at registration or activation could strengthen accountability without creating barriers.
Clear routes for raising concerns should be prioritised.

Proposal 009 – Investigative framework

Discussion
There was strong support for developing a clearer and more consistent multi-agency investigative framework involving the Office of the Public Guardian, local authorities, the Mental Welfare Commission, Police Scotland and lived-experience input.
Members highlighted current gaps and inconsistency in welfare investigations, overlap with adult support and protection regimes, and the need for better coordination, information-sharing and proportionate responses.
It was noted that this work may require a dedicated project and may be partly organisational rather than legislative.

Agreed / emerging policy intent
There was strong policy appetite for a multi-agency investigative framework involving the Office of the Public Guardian, local authorities, the Mental Welfare Commission, Police Scotland and lived-experience input.
Members recognised that this is likely to be a separate and substantial project combining organisational change with potential legislative support.

AOB and next meeting

No additional items were raised. The next meeting is scheduled for 21 May 2026 at 14:00, when the focus is intended to be the supported decision-making workstream.

Closing remarks

The Chair thanked members for a constructive and detailed discussion, noting the importance of clarity, proportionality and practical implementation. Officials will reflect on contributions and bring refined proposals back to the Group.