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1.1 The present law is failing to meet the welfare (including medical treatment) and financial needs of adults with incapacity. This was recognised by the Scottish Law Commission in their 1995 Report and draft Bill on Incapable Adults.
1.2 Adults may lose capacity through the effects of mental or physical illness, or injury. In some cases the incapacity is relatively short-term and the person recovers understanding and the ability to communicate. In other cases, such as people with Alzheimer's disease or other forms of dementia or brain injury, mental capacities are lost and never recovered, or are not fully restored. Some people have never had capacity to make decisions about their own affairs, because of congenital conditions or conditions which developed early in their life.
1.3 The number of adults with incapacity due to dementia is increasing. We estimate that there may be 60,000 in Scotland at present. There are also about 20,000 people with learning disabilities so severe that they are unable to manage their own affairs. Other people may lose capacity because of accident or illness, making an estimated total of about 100,000 people with incapacity.
1.4 The present law has many gaps, and much of it, relating to the offices of curator bonis, tutor-dative and tutor-at-law, is fragmented and outdated. These are people appointed by the courts to take decisions for adults with incapacity. Health and local authority staff, carers and families are uncertain about the legal position. Most existing substitute decision-makers have powers that relate solely to the welfare or to the property and financial affairs of the adult. This means that these arrangements are inflexible and cannot be tailored to individual needs. They can be expensive and there may be insufficient safeguards, supervision or reviews.
1.5 The law at present also fails to deal adequately with many common practical problems faced by people with incapacity and their carers. It is not possible for the court to deal with a short-term financial problem, such as the sale of a house or the signing of a document. A carer cannot obtain authority to have access to the adult's bank account to meet daily living expenses; a partner who has a joint bank account with an adult who loses capacity cannot gain access to that account without the appointment of a curator bonis.
1.6 Care establishments, such as residential homes and nursing homes, are unable legally to manage a resident's personal finances when they lose capacity, even though there may be no one else to do so. This is an increasing problem as more people with incapacity are cared for in community settings rather than being admitted to long-stay hospitals.
1.7 The case for change is overwhelming. We set out our approach in the chapters that follow. This policy statement has been written in the format of the Policy Memorandum required by the Scottish Parliament on the introduction of any piece of legislation. It sets out our policy objectives, the alternative approaches that have been considered, the consultation that has been undertaken and our reasons for choosing the options we have decided to follow. Finally, we look briefly at the impact of our proposed legislation on a wide variety of individuals, bodies and policy areas.
The title of the Bill
1.8 The title of the Bill will be the Adults with Incapacity (Scotland) Bill, not the Incapable Adults (Scotland) Bill which was the title used by the Scottish Law Commission in its 1995 report. This reflects the fact that incapacity is not an all-or-nothing concept and many adults who suffer from incapacity can still manage some aspects of their life.
Consultation
1.9 Consultation on this issue started in 1991 when the Scottish Law Commission took up the matter and many organisations and individuals responded to its Discussion Paper on Mentally Disabled Adults. In 1997 the then government published a further consultation paper, Managing the Finances and Welfare of Incapable Adults. It accepted most of the Scottish Law Commission's recommendations but invited comments on some specific issues. The paper was widely distributed and over 160 written responses were received.
1.10 We also accept most of the Scottish Law Commission's recommendations, which along with the responses to the 1997 Paper form the basis of our approach. In developing our policy, we have continued to co-operate with interest groups and others with expert knowledge such as the Alliance for the Promotion of the Incapable Adults Bill, the Committee chaired by the Rt Hon Bruce Millan that is reviewing mental health legislation (the Millan Committee), local authorities, health organisations, voluntary bodies and the Mental Welfare Commission.
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