This item was published during the term of a previous administration that ended in April 2007
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Report on Adults with Incapacity Act
28/10/2004
A report of a project to monitor the Adults with Incapacity (Scotland) Act says the legislation is yielding real benefits for adults with incapacity and those who care for and about them.
The Act - the first major law reform by the Scottish Parliament - was passed in 2000 to provide a range of measures to safeguard the property, financial affairs and welfare of adults who are unable to act or make decisions themselves because of mental disorder or inability to communicate as a result of physical disability.
Deputy Justice Minister Hugh Henry said:
"One of the early successes of this legislation is that over 30,000 powers of attorney have already been registered with the Public Guardian.
"I welcome the fact that so many people are now choosing someone to manage their affairs or look after their welfare, if they become unable to do so themselves. The benefit and relative simplicity of this procedure is something we all need to promote."
The research for the report was undertaken by a partnership of Alzheimer Scotland and the Scottish Development Centre for Mental Health and included the involvement of stakeholders, in-depth research interviews, and examination of levels of use of the Act across Scotland.
The main findings were:
- the Act is broadly meeting its central aims to provide enhanced and additional protection for people who may benefit from using the legislation
- those who participated in the study generally welcomed having more flexible options for the management of the welfare or financial affairs of individuals
- use of the Act varied between different parts of the country but usage had remained steady and was increasing each year
- there needs to be greater awareness of the Act amongst professionals and bodies with a potential role to play and amongst those who could use or benefit from its provisions
- the central role of lay people, acting as carers and proxies for adults with incapacity, is critical to the successful operation of the reforms
- the work also uncovered processes which could benefit from simplification
Mr Henry has responded to the report in a letter to the Parliament's Justice 2 Committee which says the Executive is committed to tackling issues which may inhibit the Act's objectives being fully realised.
Much work is already in hand, such as providing advice on use of the Act in situations where, for example, someone needs to move to a care home but is not able to make this decision themselves.
Mr Henry's letter also announces two major new initiatives:
- The arrangements for legal aid for proceedings under the Act, which have been a major source of concerns, are to be changed. Free legal aid will be available for welfare guardianship proceedings and also advice and assistance will be available, based on the resources of the adult with incapacity
- A new National Practice Co-ordinator for adults with incapacity will start work next month
Mr Henry continued:
"This Act is one of the achievements of devolution but it is not a piece of legislation that will be set in stone and we will continue to learn from experience. The issues raised in this report need careful consideration.
"I think we should be proud that we do not regard the job as done once the legislation has been passed. We all have a responsibility to ensure that this Act works on the ground for the people who need it."
Dr Alan Jacques, Convener of Alzheimer Scotland - Action on Dementia, said:
"After 15 years of steady campaigning carried out by Alzheimer Scotland - Action on Dementia and its predecessor organisations we were delighted that this Act was the first major piece of law reform carried out by the Scottish Parliament.
"The Act is one of the most advanced pieces of legislation on incapacity in the world, and I know from my work with Alzheimer Europe that it is looked on with admiration and a little envy in many other countries.
"The Scottish Executive has very wisely taken early opportunities to review how the Act is working. There have been a few difficulties, but this is inevitable with such a complex situation. This does not take away from the overall success of the Act in helping people plan for their own futures, and protecting those who become vulnerable to abuse or neglect because of dementia."
David McClements, a member of the Law Society of Scotland's Mental Health and Disability Committee who gave evidence on the legislation as it passed through Parliament, said:
"The Society welcomed the Scottish Parliament's decision to wholly revise the law on adults with incapacity which was out of date.
"The fact that the Adults with Incapacity Act 2000 was the first major piece of legislation to be passed by the Scottish Parliament is important in itself.
"The Society had highlighted the need for legislation for adults with incapacity at Westminster for many years but legislation was not brought forward due to "lack for parliamentary time".
"Thankfully the Scottish Parliament recognised the urgent need for change and ensured parliamentary time was available to make the new laws.
"MSPs listened to the Society's evidence which showed the previous law was creating serious injustices for many people and took account of our views along with other organisations and individuals."
The Adults with Incapacity (Scotland) Act 2000 received Royal Assent in May 2000 and was implemented in stages between April 2001 and October 2003.
The Act created the new Office of the Public Guardian, which is based in Falkirk.
The OPG is responsible for registering all powers of attorney and orders under the Act, authorising access to an adult's bank account under part 3 of the Act, supervising proxies with financial powers and carrying out investigations in response to complaints or where there may be concern that an adult's property or finances are at risk.
Local authorities and the Mental Welfare Commission also have functions under the Act, in relation to adults' welfare.