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Annex E Partial Regulatory Impact Assessment

Consultation on Proposals for Regulations to Implement Changes Contained in the Adult Support And Protection (Scotland) Act 2007

PARTIAL REGULATORY IMPACT ASSESSMENT

Purpose and intended effect

Objectives

1. This partial Regulatory Impact Assessment ( RIA) aims to provide information in relation to three of the draft Regulations in the consultation paper to which this is an annex. The Regulations are necessary to implement changes to Parts 2, 3 and 6 of the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act) contained in the Adult Support and Protection (Scotland) Act 2007 (the 2007 Act).

2. Under Scottish Cabinet rules, any piece of legislation which will create or extend a regulatory regime must include consideration of the impact of regulation on the relevant sector. We would welcome your comments on the assumptions made here, in order to revise this RIA and improve its accuracy. The RIA will be amended and published in final form when the Regulations are laid before the Scottish Parliament.

3. Devolution: The Regulations will only apply in Scotland.

Background

4. The 2000 Act provides for the protection and management of the property, financial affairs and personal welfare of adults who lack capacity to manage their own affairs because of mental disorder or inability to communicate. Part 1 of the 2000 Act contains a set of principles

• There is to be no intervention in the affairs of an adult unless that intervention will benefit the adult and the benefit cannot be achieved without the intervention
• Any intervention will be the least restrictive option in relation to the freedom of the adult
• The adult's past and present wishes must be taken into account
• There must be consultation with a range of relevant others.

5. Part 2 provides a system for registration of powers of attorney which are to commence or continue in the event of the granter's losing capacity in relation to those matters covered in the power of attorney. Part 3 provides for the legal authority to access and manage the day to day finances of someone who lacks the ability to do so for themselves. Part 6 allows any person with an interest in the affairs of an adult to apply to the sheriff for an intervention or guardianship order to manage the adult's financial affairs or welfare when s/he lacks capacity to do so.

6. To ascertain the extent to which the 2000 Act was meeting its objectives of protecting and supporting adults with incapacity, their families and carers, the Scottish Executive commissioned a two year consultancy in 2002 to monitor implementation of the Act. The project report, published in October 2004, highlighted a number of changes needed to streamline the processes and to improve accessibility. The former Justice 2 Committee of the Scottish Parliament also monitored the implementation of the Act and took evidence from stakeholders on its operation. Based on the report and evidence, the Scottish Executive carried out a written consultation on proposed changes (August - November 2005) and there were additional key stakeholder consultation events. Changes based on monitoring and consultation were brought forward in the 2007 Act. The changes are designed to simplify and streamline the protections under the 2000 Act and schemes for the management of the affairs of those who lack capacity to do so themselves and also to improve access to them. The changes were subjected to Parliamentary scrutiny during the passage of the 2007 Act.

Regulations

7. The 2007 Act received Royal Assent on 21 March 2007. Regulations are required to make a number of the changes to the 2000 Act operational. These Regulations are the subject of consultation which will run for 12 weeks. The Regulations can be found at Annex D.

8. The Regulations which are the subject of this partial RIA prescribe forms. This paper will focus on whether we have created forms which satisfy the terms of the legislation and which create the minimum burden on those who complete or process the forms or pay attendant costs. There are no policy considerations. The legislation has been scrutinised and made by Parliament. All that remains is to prescribe the Regulations which will give effect to the changes.

9. This partial RIA deals with the following three provisions in the draft Regulations in the consultation paper

• The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008 Regulation 2 and Schedule 1 which provides the single certificate to support registration of a power of attorney which contains both welfare and financial powers (paragraph 2 of Annex C)
• The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008 Regulation 3 and Schedule 2 prescribing the form of the certificate which will be required to accompany revocation of a power of attorney confirming that the person revoking understands the nature and extent of the revocation. It will also prescribe the other classes of persons who can sign a certificate to support revocation. (paragraph 3 of Annex C)
• The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008 Regulation 2(10) and Schedule 5 setting out the form which the Public Guardian will issue to support an application for renewal of financial guardianship. (paragraph 7 of Annex C)

10. The other draft Regulations are technical or administrative. They will replace or make minor adjustments to forms following the amendments to the 2000 Act and also take account of the introduction of a 'named person' in the Mental Health (Care and Treatment) Act 2003.

Rationale for government intervention

11. The regulations which are the subject of this RIA are required by legislation to implement a number of the changes to the 2000 Act in the 2007 Act. If these Regulations are not put in place, the following improvements to the arrangements for powers of attorney and guardianship will not be able to be made:

• the reduced requirement for a single certificate to support the registration of powers of attorney containing both welfare and financial powers;
• the formalisation of the process for revocation of powers of attorney to protect vulnerable granters;
• the simplified process for renewal of financial guardianship orders which will save guardians, adults who lack capacity, their families and carers, professionals and the courts time and cost.

Risk assessment

12. The draft Regulations are critical to the implementation of changes to the 2000 Act. Without the Regulations, the changes in question will not be able to take effect, potentially denying appropriate protections to some of the most vulnerable members in our society.

Consultation

Within government

13. The Office of the Public Guardian ( OPG) has been consulted in preparation of this partial RIA.

Public consultation

14. A public consultation is being carried out from August to November 2007 on all of the draft Regulations required to implement the changes to the 2000 Act. This partial RIA relates to three of these sets of Regulations in Annex D. The responses to the consultation (and a summary) will be published before the Regulations are finalised and laid before the Parliament in Spring 2008.

Certification where a power of attorney contains both continuing¹and welfare powers

15. The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2001 (the 2001 Regulations) were made by Scottish Ministers, in exercise of the powers conferred by sections 15(3)(c) and 16(3)(c) of the 2000 Act. Under sections 15 and 16 respectively of the 2000 Act, individuals can grant a power of attorney to manage their financial affairs or personal welfare.

16. In order to grant a power of attorney an individual must be capable of understanding what s/he is doing and what the impact of granting the powers will be. All powers of attorney must therefore be supported by a certificate signed by a doctor, solicitor (clarified in the 2007 Act as a 'practising solicitor') or practising advocate stating that the granter understands the implications of what s/he is doing. A power of attorney cannot be registered with the OPG without a supporting certificate in the prescribed form. The purpose of the certificate is to protect the individual, particularly when s/he may be vulnerable or susceptible to pressures from others.

17. Currently, under sections 15(3) and 16(3), two separate supporting certificates are required for a power of attorney which contains both continuing and welfare powers. These certificates are prescribed in the 2001 Regulations. The requirement for two certificates is a frequent cause of mistakes with only one certificate being provided when the power of attorney is sent for registration. If only one supporting certificate is provided, the power of attorney cannot be registered by the OPG.

18. In 2006-07, 17,745 powers of attorney containing both welfare and financial powers were registered with the OPG, all of which required two certificates. There is currently a year on year increase in the numbers of powers of attorney registered with the OPG, including those which have both welfare and financial powers.

19. The Scottish Executive brought forward an amending provision in section 57(3) of the 2007 Act, inserting new section 16A in the 2000 Act, to the effect that only one certificate is required for powers of attorney which contain both continuing and welfare powers. That provision requires a form to be prescribed. We are bringing forward The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008 Regulation 2 and Schedule 1 which prescribe the new form.

20. In bringing forward this Regulation we have also taken the opportunity to review the existing forms and have created a single multi use form for all three registration situations - a continuing only power of attorney, a welfare only power of attorney or a power of attorney containing both welfare and financial powers. The form has a different layout from that in the existing Regulations but the information required is the same. The new layout has been designed, along with the move to a single multi-use form, to reduce the number of mistakes made in the preparation of these certificates. The 2001 Regulations will be revoked.

Options

Option 1: Do nothing

21. This option would involve not commencing section 57(3) of the 2007 Act. This would mean that it would not be possible to use a single certificate to register powers of attorney containing both welfare and financial powers.

Option 2: Make Regulations prescribing a single certificate

22. The legislation requires the certificate to be prescribed. Regulations prescribing the single certificate will give effect to the change in the 2007 Act.

Sectors affected

23. This change will affect all granters of powers of attorney containing both welfare and continuing powers, the professionals involved in drafting them (in cases where professionals have been engaged) and the Office of the Public Guardian.

Benefit

Option 1: Do nothing

24. There would be no benefit from this option. Those seeking registration of powers of attorney with both continuing and welfare powers would need to continue to produce two certificates to support the process.

Option 2: Make Regulations prescribing a single certificate

25. Prescribing a single certificate will reduce the bureaucracy of registration of powers of attorney with both welfare and financial powers. It will lessen the burden on those who sign certificates and will reduce the number of items which the OPG will have to process. As failure to provide two certificates is one of the main reasons for rejection of powers of attorney for registration, it is hoped that the use of a single certificate will result in fewer rejections.

Costs

Option 1: Do nothing

26. There would be no change in the cost to those seeking registration of powers of attorney.

Option 2: Make Regulations prescribing a single certificate

27. This Regulation may result in a cost saving to individual . [Further information required see below] In addition, fewer rejections would reduce the administrative burden on the OPG.

In order to complete this section we would be grateful for information on the following

Question 1
What is the average cost of a certificate to support registration of a power of attorney

(a) by a practising solicitor
(b) by a practising advocate
(c) by a medical practitioner

Question 2
What is the cost of providing 2 certificates to support registration where a power of attorney contains both welfare and financial powers

(a) by a practising solicitor
(b) by a practising advocate
(c) by a medical practitioner

Question 3
What is the anticipated cost of providing a new single certificate to support registration where a power of attorney contains both welfare and financial powers

(a) by a practising solicitor
(b) by a practising advocate
(c) by a medical practitioner

CERTIFICATION OF REVOCATION OF POWERS OF ATTORNEY

28. Until the commencement of new section 22A in the 2000 Act, inserted by section 57(7) of the 2007 Act, revocation of powers of attorney is dealt with under the common law. Currently the individual simply informs the Public Guardian of the revocation. Revocation of powers of attorney will in future be dealt with under new section 22A. Written notice of revocation of part or the whole of a power of attorney must be sent to the Public Guardian and must incorporate a certificate by a practising solicitor or a member of a prescribed class stating that s/he interviewed the granter immediately before the document was signed, that the granter understands the effect of the revocation and was not under undue influence. The certificate will protect those who have fluctuating capacity or who are vulnerable and susceptible to undue influence by others. New section 22A requires the form to be prescribed. The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008 Regulation 3 and Schedule 2 prescribe the certificate which will accompany revocation of a power of attorney. The Regulations also provide for the classes of those, other than practising solicitors, who can sign the supporting certificate. The classes are the same as those for certification for registration of powers of attorney.

Options

Option 1: Do nothing

29. This option would involve not commencing section 57(7) of the 2007 Act. This would mean that it would not be possible to use the formalised revocation procedure.

Option 2: Make Regulations prescribing a certificate to support a revocation notice

30. The legislation requires the certificate to support a revocation notice to be prescribed. Regulations prescribing the certificate will give effect to the change in the 2007 Act which creates a formal revocation process for powers of attorney.

Sectors and groups affected

31. Certification of revocation of powers of attorney will impact on individuals who wish to revoke a power of attorney in whole or in part. The OPG will have to process the certificates but this will not result in significant administrative costs as it is already processing revocations. Since 2001, almost 98,000 powers of attorney have been registered with the OPG which has dealt with a total of 1118 revocations.

32. We have no way of knowing how many of the powers of attorney which are registered are operational and by implication which might or might not be subject to change in the future. Welfare powers of attorney can only come into effect on the granter's incapacity and financial powers of attorney can either start or continue on incapacity. Clearly where the granter has lost capacity, the power of attorney will not be subject to change by the granter. There is no requirement for the attorney to notify the Public Guardian when s/he begins to exercise the authority following the adult's loss of capacity. We therefore cannot provide figures for those powers of attorney which may be capable of being revoked.

Benefits

Option 1: Do nothing

33. There would be no benefit from this option. Those revoking powers of attorney will not have the benefit of the protection offered by the new process.

Option 2: Make Regulations prescribing a certificate to support a revocation notice

34. Prescribing the certificate will allow new section 22A to come into effect providing the protections for granters as approved by Parliament and outlined above. It will also offer the Public Guardian certainty when a revocation notice is sent to her. The information required in the certificate will mirror that already required for registration of powers of attorney and will therefore be familiar to those who will be signing the certificate.

Costs

Option 1: Do nothing

35. Individuals revoking powers of attorney would not have to bear the cost of providing a certificate but this should be set alongside the potential financial harm which could be suffered by a vulnerable adult who revokes a power of attorney as a result of pressure from others without understanding the effect of what s/he is doing.

Option 2: Make Regulations prescribing a certificate to support a revocation notice

36. In terms of individuals there will be a fee for preparation of a certificate. The fee for the certificate should be no more than that for the certificate required to accompany the registration of a power of attorney ( Further information required see question 4 below) because the process of revocation and the certificate mirror that for registration. The information in the certificate will be confined to the terms of what is required by the legislation. Practitioners are already familiar with the information required to complete the certificate.

37. The formalisation of the process and the requirement for a certificate may result in more individuals using professionals to submit revocations. Currently, most revocations come directly from the granter.

38. The formalisation of the process will result in a small additional cost to the OPG to adjust the computer system to incorporate the certificate. However, this cost will be subsumed into the recurrent costs of modifying the OPG's computer system.

In order to complete this section we would be grateful for information on the following

Question 4
What is the anticipated/projected cost of a certificate to support revocation of a power of attorney

(a) by a practising solicitor
(b) by a practising advocate
(c) by a medical practitioner

RENEWAL OF GUARDIANSHIP

39. Section 60(3) of the 2007 Act inserts new sections 60(3) and (3A) into the 2000 Act to provide a simplified procedure for renewal of guardianship which can be dealt with by the sheriff on the basis of an application without a hearing. Currently if a guardian is seeking reappointment / renewal the supporting reports for the application process are the same as those for the initial appointment - 2 medical reports and a further report from either a mental health officer, Chief Social Work Officer or a person with sufficient knowledge to make a report, depending on the powers sought and the cause of the adult's condition. The new process will require one medical report, a report by a mental health officer or the Chief Social Work Officer where welfare powers are sought and a report by the Public Guardian where it is renewal of financial guardianship. The new process should save cost and time. It is less onerous than the current process, while still providing safeguards.

40. We are bringing forward Regulations which prescribe the forms to support a simplified process to renew guardianships. The forms are set out in The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008. These Regulations are part of the consultation and comments are invited on them in that exercise.

41. The requirement for the Public Guardian to provide a report to support renewal of financial guardianships is new. The form of the report by the Public Guardian which is prescribed in Regulation 2(10) and Schedule 5 of The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008 is the subject of this RIA.

Options

Option 1: Do nothing

42. This option would involve not commencing section 60(3)(c) of the 2007 Act. This would mean that the new simplified renewal process for financial guardianship would not be available.

Option 2: Making Regulations prescribing the report by the Public Guardian

43. Prescribing the report by the Public Guardian will give full effect to section 60(3) of the 2007 Act and provide the mechanisms for the simplified renewal process for all guardianships.

Sectors and groups affected

44. This is a new requirement on the Public Guardian.

45. All adults who lack capacity and for whom a guardianship order has been granted which requires to be renewed, their guardians, families and carers will be affected. The process is designed to save them time and money.

46. Since 2002 there have been 1945 financial or joint welfare and financial guardianships granted. A significant number of these could benefit from the new simplified process, although some of these may have been indefinite grants and in other cases the adults' estates may no longer require financial guardianship.

Benefits

Option 1: Do nothing

47. There would be no benefit from this option. Those renewing financial guardianships would not be able to access the simplified renewal process which is designed to take a shorter time than the current process.

Option 2: Make Regulations prescribing the report by the Public Guardian for renewal of financial guardianships

48. Prescribing the Public Guardian's report along with the others will allow the new renewal process to become operational. The new system for renewal of financial guardianship will be speedier and significantly less onerous because it will not be necessary, as at present, to seek a report from someone with sufficient knowledge to comment on the appropriateness of the order sought and the suitability of the person nominated in the application to be appointed. Without the Regulation, the new provision cannot be used. The existing system would prevail and the benefits which the new system should bring would not be delivered.

Costs

Option 1: Do nothing

49. There would be no reduction in cost for those seeking renewal of financial guardianships. There would be no cost to the Public Guardian.

Option 2: Make Regulations prescribing the report by the Public Guardian for renewal of financial guardianships

50. There will be a cost to the Public Guardian to produce the report but this will be negligible. The form will be able to be electronically generated and will provide an opinion on the conduct of the guardianship to date and the continuing suitability of the guardian from the Public Guardian's supervision of the guardian.

51. There will also be a cost for adjustments to the Public Guardian's computer system. However this will be minimal and will be absorbed within a wider package of changes relating to amendments to the 2000 Act.

52. There is likely to be a reduction in the cost to applicants for renewal of financial guardianships because it will no longer be necessary to obtain a report from a person who has sufficient knowledge to give an opinion on the general appropriateness of the order sought and on the suitability of the individual nominated as guardian.

The Small Firms' Impact Test

53. The Regulations which are the subject of this partial RIA will not impact on small firms or micro-businesses.

Test run of business forms

54. No business forms will be created in the proposed Regulations.

Competition assessment

55. These Regulations will not impact on business therefore there will be no impact on competition.

Consultation

56. The changes to the 2000 Act were developed following extensive consultation. This draft RIA and the draft Regulations to which it relates (which are required to bring three of the changes into effect) are produced for comment. It has been distributed to a range of key stakeholders.

57. It is also available on the Scottish Executive website consultations page.

58. We would be grateful for any comments on the 4 specific questions in this partial RIA and on the partial RIA more generally by 8 November 2007.

Contact

Any queries about this RIA should be addressed to:

Kirsty Robertson

Tel: 0131 244 6931
Fax: 0131 244 2195
Email :Kirsty.Robertson@scotland.gsi.gov.uk

Scottish Executive
16 August 2007

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