Some Changes the Scottish Government is Thinking about Making to the Adults with Incapacity (Scotland) Act 2000

Author: Frances Clark
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The Adults with Incapacity (Scotland) Act 2000 was one of the first laws made by the Scottish Government after it was set up in 1999.It was introduced to protect the rights of adults who cannot make decisions about their own lives. However, a lot has changed in the last 20 years and the Scottish Government thinks it is time to take a look at the way the law is working and to consider methods to make it better.

Since 2000 we have started to look at peoples’ human rights differently and some people now think that the law does not fully protect the human rights of adults with incapacity, for example if someone is being kept in a care home or hospital and is not able to agree to this, they might be having their human rights taken away from them.

In some cases an adult with incapacity may need to be kept in a hospital or care home for their own good. The Scottish Government is suggesting that an adult should be given support to understand why they are being kept like this and be given the opportunity to express their views about it.  Also if they cannot agree to it, then another adult, who is a guardian or holds a power of attorney can decide. A review of the 2000 Act is promoting that a power of attorney should in the future need to clearly say if it allows the adult to have their freedom taken away. If not a court order or guardianship order will be needed.

Even with all the help and support given to an adult with incapacity some adults will still be unable to make decisions and so there will always be a need for guardianship orders. At the moment guardians are given a lot of power over adults and the process of getting a guardianship often does not involve the adult.

The Scottish Government is suggesting a kind of graded guardianship that can be made to suit the adult’s needs and only lasts as long as it is needed and they also want to make the system simpler so that it would be easier for the adult to attend court hearings.

  • A grade 1 guardianship would require an application to the Office of the Public Guardian. A grade 1 guardian would be able to do simple things for the adult, like handling the adult’s money under a certain amount and deal with day to day welfare matters. They would not be able to change where the adult lives.
  • Grade 2 guardianships would have to be looked at by a Sheriff or Mental Health Tribunal. This would only have to be done in writing without going to court. A grade 2 guardianship would be for adults with more complex needs and could make decisions about the adult’s care which might take away some of the adult’s freedom.
  • Grade 3 guardianships would only be made when the adult or some other person disagreed with the Grade 1 or 2 application and would require a hearing in the Sheriff Court or at a Mental Health Tribunal.

Finally the Government thinks that adults with incapacity should be more involved in the process of picking their guardians with powers to make decisions for them. The hearings should be more welcoming and accessible to everyone who is involved.

The Scottish Government is consulting on these matters and other issues at the moment. https://www.gov.scot/publications/easy-read-version-consultation-adults-incapacity-reform/

Frances Clark

About Frances Clark

Frances joined Mitchells Roberton in 1990 and completed her civil law court work paralegal course at Strathclyde University in May 1993 and the Advanced Paralegal course in 2003. Frances specialises in applications for the appointment of Welfare and Financial Guardianship Orders and thereafter in the administration of Financial Guardianships. As with all others in the firm, Francis is entirely client focused and is always available to answer questions or queries no matter how small. She believes very strongly in keeping the client fully informed at all times about what is happening. In her spare time Frances enjoys socialising. Email: mfc@mitchells-roberton.co.uk

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