Introduction
The consultation on draft Regulations to implement a number of the changes to the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act), which were made by the Adult Support and Protection (Scotland) Act 2007 (the 2007 Act)' was launched on 16 August and closed on 8 November 2007. A partial Regulatory Impact Assessment (RIA) formed part of the consultation. The consultation paper can be viewed at
http://www.scotland.gov.uk/Publications/2007/08/10111218/0 .
The 2007 Act received Royal Assent on 21 March 2007. For information on the changes relating to the draft Regulations and on other changes and the implementation plan/timetable follow this link to the Scottish Executive Adults with Incapacity website -
http://www.scotland.gov.uk/Topics/Justice/Civil/awi. Background information is also available on the Scottish Parliament site for the 2007 Act and supporting documents http://www.scottish.parliament.uk/business/bills/62-adultSupport/index.htm.
The Regulations are largely technical and administrative. They provide the mechanisms to support a number of the changes agreed by Parliament to processes in the 2000 Act and to enable them to come into operation.
The aim of this report is to summarise the views of those who responded to the consultation.
Responses
There were 14 responses to the consultation - 2 from solicitors, 2 from the voluntary sector, 2 from the business and health sector respectively and 8 from local authorities. All responses were positive and a number of minor changes to forms for clarification were suggested.
Draft Regulations
Six sets of Regulations were the subject of the consultation -
• The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008
• The Adults with Incapacity (Accounts and Funds) (Scotland) Regulations 2008
• The Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Amendment Regulations 2008
• The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008
• The Adult Support and Protection (Scotland) Act 2007 (Adults with Incapacity) (Consequential and Supplemental Provisions) Order 2008
• The Adults with Incapacity (Public Guardian's Fees) (Scotland) Amendment Regulations 2008.
General comments were invited on the draft Regulations. No specific questions were asked.
No changes were suggested in relation to the following Regulations
• The Adults with Incapacity (Accounts and Funds) (Scotland) Regulations 2008 (Consequential and Supplemental Provisions) Order 2008
• The Adult Support and Protection (Scotland) Act 2007 (Adults with Incapacity) (Consequential and Supplemental Provisions) Order 2008
• The Adults with Incapacity (Public Guardian's Fees) (Scotland) Amendment Regulations 2008
A number of changes were suggested to the forms in the remaining Regulations which we have considered and, where appropriate, have implemented.
Partial RIA
The Regulations which were the subject of the partial RIA prescribe forms. The partial RIA contained within the consultation package focused mainly on whether the forms created satisfied the terms of the legislation and would create the minimum burden on those who complete or process the forms or pay attendant costs. There were no policy considerations. The legislation had been scrutinised and made by Parliament. All that remained was to prescribe the Regulations which would give effect to the changes.
Four specific questions were asked in the RIA about the certificates to support registration and revocation of powers of attorney. The first three related to whether prescribing a single certificate for registering a power of attorney which contained both financial and welfare powers would result in a cost saving to an individuals.
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
We received 2 responses to Question 1. One local authority suggested, having canvassed two GP practices, that the cost currently for providing a certificate was between £20 and £100. The other response was that costs varied widely. It was pointed out that if an adult was known to a psychiatrist there might be no charge, that if a solicitor asked for the certificate to be provided the charge would be £95 upwards and that, in some areas where a local authority social work department asked for a certificate, they would not pay for it.
No other respondees were able to provide estimated costs. There was therefore insufficient information to enable us to expand this element of the RIA.
The fourth question related to the cost of a certificate to support revocation of a power of attorney.
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
There was no direct response in relation to the question asked and so we were unable to expand this element of the RIA.
The partial RIA also covered the prescribed report which the Public Guardian will have to provide for the new simplified process for renewal of guardianship. No comments were received.
The final RIA can be viewed at http://www.scotland.gov.uk/Topics/Business-Industry/support/better-regulation/partial-assessments
List of consultees
Local Authority Chief Executives
Local Authority Directors of Social Work
Local Authority Adults with Incapacity Coordinators
CoSLA
ADSW
Office Of the Public Guardian
Mental Welfare Commission for Scotland
Carers Scotland
Scottish Carers Alliance
Princess Royal Trust for Carers
Coalition of Carers
Crossroads Scotland
Shared Care Scotland
Advocates Library
Commission For Racial Equality- Scotland
Equal Opportunities Commission
Citizens Advice Scotland
Scottish Council for Voluntary Organisations
NSF Scotland
FAIR (Family Advice & Information Resource)
Advocard
Advocacy Information and Management Services Ltd.
Advocacy Safeguards Agency
Drumchapel Law & Money Advice Centre
Mental Health Advocacy Project
Scottish Independent Advocacy Alliance
VOCAL Carers Advocacy and Counselling Service
The Building Societies Association
Post Office Ltd
The Committee of Scottish Clearing Bankers
Co-operative Bank plc
Scottish Association Of Care Homes
Scottish Federation of Housing Associations
Dundee North Law Centre
Paisley Law Centre
Castlemilk Law Centre
East End Community Law Centre
Legal Services Agency Ltd
Ethnic Minorities Law Centre
SALC
West Dumbarton Law Centre
Govan Law Centre
Law Society of Scotland
Sheriff's Association
Scottish Law Commission
Scottish Legal Aid Board
Scottish Law Agents Society
Help the Aged
Age Concern Scotland
Scottish Pensioners' Forum
Scottish Pensions Association
Scottish Older People's Advisory Group
ENABLE
Scottish Society for Autism
Down's Syndrome Scotland
National Autistic Society
PAMIS
Garvald Centre (Edinburgh)
Quarriers
ELCAP
Scottish Consortium for Learning Disability
Disability Centre for Independent Living
Scottish Disability Equality Forum
Headway Scotland
Chest, Heart, Stroke Scotland
Disability Rights Commission Office for Scotland
Scottish Head Injuries Forum
Capability Scotland
Scottish Association of Mental Health
Turning Point Scotland
The Richmond Fellowship Scotland
Mental Health Foundation
Manic Depression Fellowship Scotland
Alzheimer Scotland-Action on Dementia
Dementia Services Development Centre
Vulnerable Adults Alliance Scotland
Scottish Development Centre for Mental Health
Penumbra
Scottish Huntington's Association
SACRO
Depression Alliance Scotland
Scottish Dementia Working Group
Neurological Alliance Scotland
Royal College of Physicians and Surgeons Glasgow
Royal College of Psychiatrists
British Geriatrics Society
General Medical Council
Royal College of Physicians of Edinburgh
British Medical Association
Scottish General Practitioners Committee
Royal College of General Practitioners
BASW
Scottish Consumer Council
Society of Will Writers
Justice Committee of the Scottish Parliament
Health Committee of the Scottish Parliament
Adrian Ward
Adults with Incapacity Regulations Consultation - List of Responses
0001 - Inclusion Scotland
0002 - West Dunbartonshire Council
0003 - Turnbull & Ward Solicitors
0004 - Angus Council
0005 - Dundee Council
0006 - Alzheimer Scotland
0007 - East Ayrshire Council
0008 - Inverclyde Council
0009 - Raeburn Christie Clark & Wallace
0013 - The Law Society of Scotland
Responses received = 14 / Published = 10