Report on Incapable Adults : Contents Page

Report on Incapable Adults

PART 1 INTRODUCTION	Paragraph
Background to the report	1.1
The present law in outline	1.7
Mental health guardians	1.8
Tutors-dative and tutors-at-law	1.9
Medical treatment	1.10
Curators bonis	1.11
Attorneys	1.12
Statutory schemes	1.13
Negotiorum gestio	1.14
What's wrong with the present law?	1.15
Our reforms in outline	1.27
Scope of the report	1.31

PART 2 GENERAL MATTERS
Introduction	2.1
Adults the report deals with	2.2
General grounds for intervention	2.3
Which body should authorise interventions?	2.18
Jurisdiction of courts	2.33
Safeguarders for incapable adults	2.36
Title to apply to the courts	2.37
The supervisory framework	2.40
The Public Guardian	2.41
The Mental Welfare Commission	2.43
The local authority	2.44
Cooperation and provision of information	2.45
General principles governing interventions	2.47
Benefit to adult	2.51
Least restrictive intervention	2.55
Encouraging use and development of skills	2.59
Consultation and consideration of views	2.60
Fiduciary duties in relation to adults	2.74
Ill-treatment and neglect of incapable adults	2.80

PART 3 CONTINUING AND WELFARE POWERS OF ATTORNEY
Introduction	3.1
Effectiveness after incapacity to be express or implied?	3.6
Execution of continuing or welfare powers of attorney	3.11
Signature by attorney?	3.13
Ensuring granters understand document when signing	3.14
Who may be appointed a continuing or welfare attorney?	3.20
Registration of continuing or welfare powers	3.27
Springing powers of attorney	3.37
When should welfare powers be exercisable?	3.41
Powers of continuing and welfare attorneys	3.43
A duty to act?	3.49
Should there be official supervision of continuing or welfare attorneys?	3.53
Court orders relating to continuing or welfare attorneys	3.57
Accounting	3.61
Supervision by Public Guardian	3.66
Reporting to court and supervision by local authority	3.67
Directions to attorney	3.68
Removal of continuing or welfare attorney and revocation of power	3.69
Variation of continuing or welfare power of attorney	3.73
Resignation of continuing or welfare attorneys	3.75
Termination of continuing or welfare powers of attorney	3.78
Disposal by attorney of special legacies	3.80
Private international law aspects	3.82

PART 4 OTHER TYPES OF EXTRA-JUDICIAL MANAGEMENT
Introduction	4.1
WITHDRAWALS FROM BANK ACCOUNTS	4.4
The scheme in outline	4.4
When scheme applies	4.13
Procedure in obtaining authority to withdraw	4.14
Limits on amounts withdrawable	4.16
Further safeguards for incapable adults	4.19
Liability of the bank	4.21
Termination of authority to withdraw	4.22
Extension to other organisations	4.26
JOINT ACCOUNTS	4.28
MANAGEMENT BY ESTABLISHMENTS OF RESIDENTS'FINANCES	4.33
The existing system and criticisms of it	4.33
Which establishments?	4.42
Which residents?	4.47
Certification of residents as incapable	4.48
What matters may be managed?	4.58
Safeguards for residents	4.62
Oversight by the Public Guardian	4.65
Duties of establishments under scheme	4.66
Withdrawal of approval of establishments	4.71

PART 5 MEDICAL TREATMENT AND MEDICAL RESEARCH
Introduction	5.1
Authority to treat incapable patients	5.3
Consulting the patient's nearest relative	5.18
Treatments outwith the general authority	5.21
Sterilisation	5.24
Electro-convulsive therapy	5.25
Abortion	5.26
Psychosurgery	5.27
Other treatments	5.29
Role of guardians and continuing attorneys in medical treatment decisions	5.34
Advance statements	5.41
Exceptions to binding nature of advance statements	5.52
Radical change in circumstances	5.52
Life-saving treatment	5.54
Basic care	5.55
Detained patients and treatment of mental disorder	5.56
Endangering viable foetus	5.57
Revocation of advance statements	5.59
Organ donation	5.60
Medical research	5.63
Withholding or withdrawing medical treatment	5.77

PART 6 INTERVENTION ORDERS AND GUARDIANSHIP
Introduction	6. 1
INTERVENTION ORDERS	6.13
Grounds for application and those entitled to apply	6.20
Variation and recall of intervention orders	6.21
The role of the local authority	6.22
Registration of intervention orders	6.23
GUARDIANSHIP	6.24
Grounds for appointment of guardian	6.24
Title to apply	6.31
Procedure for appointment of guardians	6.34
Reports	6.35
Intimation of application	6.38
Interim powers	6.39
Intimation of result of application	6.40
Caution	6.41
Duration of guardian's appointment	6.42
Who may be appointed as guardian?	6.45
Selection of guardians	6.61
Joint guardianship	6.71
Substitute guardianship	6.79
Powers conferrable on guardians	6.88
Gifts by guardian	6.109
Giving effect to a guardian's welfare decisions	6.111
Supervision of guardians	6.114
Investigating complaints about guardians	6.127
Effect of appointment of guardian	6.130
Duty to act and delictual liability of guardians	6.141
Liability of joint guardians	6.148
Penalty for inadequate performance by guardian	6.149
Delegation by guardian	6.151
Guardian allowing adult to handle affairs	6.153
Changes of address	6.155
Financial aspects of guardianship	6.156
Lodging an inventory	6.156
Plan for managing the estate	6.157
Running the adult's business	6.163
Sale or purchase of dwelling-house	6.164
Investment powers	6.165
Lodging money belonging to adult	6.171
Accounting and auditing of accounts	6.172
Variation of guardianship orders	6.179
Renewal of guardianship	6.180
Termination of guardianship	6.186
Recall of guardianship	6.187
Resignation and replacement of guardians	6.197
Remuneration of guardians	6.206
Reimbursement of guardians	6.212
Discharge of guardian	6.216
Private international law aspects	6.218
Financial powers	6.219
Welfare powers	6.221
Scope of Bill's provisions.	6.225

PART 7 MISCELLANEOUS
Introduction	7.1
Procedure	7.2
Appeals	7.3
Transitional provisions	7.6
General	7.6
Attorneys	7.7
Hospital managers	7.8
Curators, tutors and guardians	7.9
Existing statutory references	7.11
Consequential amendments and repeals	7.12
The Judicial Factors Acts	7.13
The Mental Health (Scotland) Act 1984	7.14
The Criminal Procedure (Scotland) Act 1975	7.16
The Sale of Goods Act 1979	7.18
Matters not pursued	7.19
Leave of absence	7.20
Sexual offences	7.21
Administrative trusts	7.22

PART 8 LIST OF RECOMMENDATIONS

APPENDIX A: Draft Incapable Adults (Scotland) Bill and Index

APPENDIX B: List of those who submitted comments on Discussion Paper No 94