The Adults with Incapacity (Scotland) Act 2000 (Part 2)

It is almost one year since parts of the Adults with Incapacity (Scotland) Act 2000 (“the Act”) came into force in Scotland. It was hoped that this modernising act would become a model for other countries and jurisdictions. Tom Monteith, a partner at Bird Semple examines the impact of the act so far, considering how successfully it has been implemented and what we can look forward to seeing in the coming months .

A commentary on the provisions that came into force appeared in this journal in May 2001, from which it will be remembered that the Act provided for a complete overhaul of the law relative to incapacitated adults in Scotland. Laws which had remained largely unchanged for over 100 years were swept aside in favour of a much more modern approach. The result of this is that the Act, which has the seal of approval of many organisations concerned with the welfare of incapacitated adults, has often been held up as a model that other countries may wish to look to as an example of the way forward. For jurisdictions closer to home, it was also thought that the Act, although having legal effect only in Scotland, would come to have some influence over what is considered to be best practice elsewhere.

Since the previous article was prepared when certain parts of the Act had only just come into force, it was too early to say whether the changes would produce the benefits that they were designed to achieve. This article looks, firstly, at the story of the last year, and then, secondly, at the next wave of changes that are due to come into effect on 1^st April 2002.

Provisions of the Act

The areas that the Act seeks to cover are broadly as follows:-

Part one - general provisions

Part two - powers of attorney (both continuing and welfare)

Part three - intromitting with bank accounts and other funds

Part four - management of finances for residents in care establishments

Part five - medical treatment and research

Part six - intervention and guardianship orders

Part seven - miscellaneous provisions, including new crime of ill-treatment and wilful neglect

Parts one, two, three and seven came into force on 1 April 2001. Parts four and five were due to come into force on 1 April 2002, but the enabling regulations have now been postponed until April 2003 and July 2002 respectively. Part six comes into force on 1 April 2002.

Changes to date
Part one - general provisions

Part one of the act contained various general provisions, including the establishment of the new role of ‘the public guardian’. This has been effected and the Public Guardian’s Office has quickly settled into its new functions. Perhaps the most important provisions, however, were the general principles contained in s.1 which effected a wholesale change in how all matters regarding incapacitated adults should be dealt with. These Principles were dealt with in depth in the previous article, but can broadly be summarised as:

1. Intervention in the adult’s affairs must only take place if it can be shown to benefit the adult

2. The intervention must be the least restrictive of the adult’s freedom

3. Account must be taken of the adult’s past and present wishes, where known

4. Account must be taken of the views of certain others, including the adult’s nearest relative and primary carer.

The Principles apply to all appointments and orders made in terms of the act. The very real belief is that as a result of this Scots law is now much more reflective of modern society’s wishes and views than most other jurisdictions in the world.

Part two – powers of attorney

Since this part came into force on 1 April 2001, approximately 4,600 powers of attorney have been registered with the public guardian, of which approximately 1,200 have been welfare powers of attorney. How many more welfare powers have been granted but have not yet been registered is impossible to say, but it certainly looks as if they are meeting a demand that, until the act gave them legal force, was going substantially unmet. In view of the importance of the subject matter, that has got to be a great improvement in the law.

The fact that all powers of attorney now have to be signed by the granter in the presence of a solicitor, or another certified individual, who certifies that the granter understood the nature and effect of the document at the time of signing has obviously caused a change in procedure for many solicitors, but the inconvenience, both for the solicitor and the client, seems to have been accepted with few complaints.

Part three - intromitting with bank accounts

The thinking behind this part of the act was to allow the clearing banks a simple way to stop acting on all of the informal arrangements that they have regarding the bank accounts of incapacitated adults. The banks had expressed a strong desire to have these types of arrangements formalised, both for their own protection and for the protection of the incapax, and it was anticipated that up to 10,000 applications would be made to the public guardian in the first year or two by people seeking authority to intromit with an incapax’s bank account(s). In fact only 160 or so applications have been made, which would tend to suggest that the problem was not as big as the banks represented, or that the banks are still operating their informal arrangements. Whether the position changes in the years to come remains to be seen. Clearly, however, it would be to everyone’s advantage, now that an appropriate system exists, for that system to be used.

Changes about to happen
Part four - management of finances for care homes residents

Part four of the act was one of the most controversial areas of the new law and, although not yet in force, it has, unfortunately, already attracted criticism from some of those involved with the financial affairs of incapacitated adults. The intention of the provisions is, where appropriate, to allow an incapacitated adult’s finances to be administered by care homes and other institutions listed in s.35 of the Act. Whilst the new law is undoubtedly well intentioned, doubts have been expressed as to how well it will work in practice. At its most extreme, concerns have been voiced that it is only a matter of time before reports appear of care home residents having been defrauded by unscrupulous or dishonest proprietors. Whether care-home owners are any more unscrupulous or dishonest than Attorneys or Guardians is obviously open to question. It is to be hoped that they are not. Rather, it will hopefully be the case that owners of care homes will soon be able formally to assist their residents, where there is no attorney in place and no-one else is willing to use the powers set out in parts three and six of the act, rather than matters continuing to be dealt with informally on a nod and a wink basis.

Recognising the potential difficulties, however, the provisions set out strict restrictions regarding which assets can be managed by care homes and in what circumstances. These are broadly as follows:-

Firstly, no assets can be managed until the resident has been medically certified as incapable, with the resident and their nearest relative having been notified in advance of the home’s intention to have the examination carried out. If a certificate is subsequently granted the home must then inform the resident and its supervisory body of its intention to manage the resident’s affairs.

Secondly, the assets that homes are permitted to manage are restricted to those set out in s.39 of the act, which clearly excludes heritable property. Regulations will also set the maximum sum that a home can manage and it is thought that this will be around £5,000.

Thirdly, homes will not be able to act where an attorney or guardian has already been appointed to assist the incapax, or where the court has granted an intervention order on the matter.

Lastly, all homes that decide to act are to be supervised, although not by the public guardian, but rather by the home’s normal supervisory body. This is the part where many people feel that the act is weak, believing that the monitoring teams will not be particularly experienced in their policing duties. In the case of the local authority’s own homes, there is an obvious conflict of interest in having the local authority act as its own supervisory body. The experience of the same type of procedure being applied to children’s homes has not always been a particularly happy one.

The changes were supposed to come into force on 1 April 2002, but these have been postponed pending the introduction of the Scottish Commission for the Regulation of Care. The new start time is anticipated to be around April 2003.

Part five - medical treatment and research

This was undoubtedly the most controversial part of the bill during its passage through Parliament, perhaps unsurprisingly since it deals with medical treatment and research. The act seeks to ensure that proper medical treatment is given to incapacitated adults, firstly, without undue delay caused by doctors looking for someone to consent on behalf of the adult, and secondly, without doctors fearing accusations at a later date of having acted improperly. At one stage, however, there was concern that the act may allow euthanasia into Scotland through the back door, or that greedy individuals would be given the ability to shorten their incapacitated relatives’ lives in order to hasten their inheritance. Thankfully both matters were ultimately resolved and the enacted provisions are unlikely to attract much criticism when they come into force in July 2002.

In addition to the common law grounds which exist in Scotland, and the powers conferred on welfare attorneys by part two of the act, doctors have been given a new statutory authority to treat incapacitated adults, provided always that they comply with the provisions contained in s.47 of the act. In terms of that section, before a doctor may act he must certify, using a prescribed form, that he believes the adult to be incapable of making a decision with regard to the medical treatment in question. Once the certificate has been granted, the doctor then has the authority to do whatever is reasonable in the circumstances to safeguard or promote the physical or mental health of the adult. While fine in theory, it seems likely that problems will arise from time to time once the provisions come to be applied to real-life situations.

One matter that is of particular interest to many people is the effect that the act has, if any, on the legal status of Advance Medical Directives in Scotland. This issue will become particularly important if there should ever be a conflict between, firstly, the terms of an advance medical directive granted by the adult before he or she lost capacity, secondly, the wishes of any welfare attorney appointed by the adult in terms of part two of the act, and, thirdly, the wishes of doctors acting in terms of part five of the act. It is to be hoped that these types of situations arise infrequently, but it is not hard to imagine circumstances where conflict could arise.

Matters are not helped by the fact that the exact legal status of advance medical directives in Scotland has always been unclear. Despite a recommendation by the Scottish Law Commission that the issue should be dealt with in legislation, a conscious decision was made by the Scottish Executive not to include provisions regarding advance medical directives in the act. What we do have, however, is a provision that applies the general principles of the act (contained in s.1 and mentioned above) to medical treatment in the same way as they apply to all other matters dealt with by the act. Consequently, before carrying out (or not, as the case may be) any medical treatment on the adult there is a need for the doctor to consider the past and present views of the adult concerned, as well as to consult with the nearest relative and primary carer and the welfare attorney (if there is one). The question arises, therefore, as to whether this requirement indirectly improves the legal standing of advance medical directives in Scotland, since these documents will clearly set out the past wishes of the adult on the matter. While the doctor will still need to try and ascertain the present wishes of the adult, there has got to be an argument that advance medical directives now have a greater legal status than they had before.

Should disputes arise, s.50 sets out how these are to be resolved. The provisions are somewhat tortuous but hopefully they will not need to be used too frequently. Ultimately, if the doctors and the welfare attorney cannot agree, the matter can be taken to the court of session for a ruling on whether the proposed treatment is appropriate.

Part six - intervention and guardianship orders

This part of the act introduces some of the most important changes of all. The standard procedure under the existing law, where an adult has not appointed an attorney, is to have a Curator Bonis (the Scottish equivalent of a Receiver in the Court of Protection) appointed by the court to look after the adult’s financial affairs. There is no half-way house and the appointment of a curator often imposes a legal incapacity on the adult which exceeds that person’s actual mental incapacity. This is not in keeping with the thinking behind the new provisions. In particular, general principle two states that any intervention in an adult’s affairs should be to the minimum extent necessary to affect the benefit. The emphasis has clearly shifted away from the state’s paternalistic approach of appointing someone to act in the best interests of the incapacitated adult in all matters, to allowing the adult to retain as much freedom as possible, subject to receiving assistance as and when necessary.

Intervention orders will fill one of the most glaring gaps in Scots law and will stop practitioners from having to use other more awkward remedies to deal with everyday problems. They are likely to be sought when it is necessary to get permission to undertake one-off transactions or make one-off decisions, or to deal with matters that are limited in time. It will also be possible for attorneys to make use of intervention orders if they wish to undertake a matter that is not permitted by the terms of the power of attorney document. The intention is that such orders should allow intervention to take place where it is necessary to produce a benefit for the adult, but thereafter the adult should be free to handle his own affairs.

An order can be sought by anyone who has an interest in the property, financial affairs or personal welfare of the adult, with the local authority being the applicant of last resort. There are no restrictions on the type of situation that an order can cover, so it must be presumed to be able to cover everything, making it an extremely wide and flexible remedy. It is thought, however, that in order to be consistent with the principle that the least restrictive course of action is to be followed, each individual order will have to be extremely precise about what is and what isn’t authorised.

All applications need to be supported by three different reports, two of which are to be from doctors in a prescribed form. The third report is to be from a mental health officer (if the proposed order relates to a personal welfare matter) or ‘a person who has sufficient knowledge to make such a report’ (where the proposed order relates to property or financial matters). The reports have to show that consideration has been given to all of the general principles. The costs of obtaining these reports will ultimately be met by the incapax.

When an order is eventually granted relative to financial matters, caution (which is an insurance policy to cover the actions of the intervener) must be found by the person who has been granted the powers. The public guardian will then exercise a general supervisory role, but no particular accounting is required unless the power relates to heritable property. It should also be noted that the intervener does not get paid for his actions.

Guardianship orders are similar to intervention orders and share many of the same procedures, but the former are intended to cover situations where there is likely to be a need for greater or more ongoing assistance. In keeping with the general principles, guardianship orders will be both limited as to duration and flexible as to the powers granted. Appointments are stated as being for three years and renewals are for five years, although it is thought that it will probably be possible to get longer appointments where reports show that there will be no improvement in the adult’s condition.

As with the existing law, an inventory of estate will have to be completed when the Guardian takes control and annual accounts will need to be submitted thereafter. A new feature, however, is the requirement for a financial guardian to submit for the public guardian’s approval a management plan that shows how the guardian intends to manage and invest the estate taken over. Until that plan is approved the Guardian can take control of the assets, but he cannot intromit. This procedure should ensure that there is a consistency in the management of all incapax’s affairs and that success does not depend on who should happen to have been appointed as the financial guardian.

As with intervention orders, guardianship orders can be relative to welfare matters as well as financial affairs. Unlike those acting under intervention orders, however, financial guardians will be able to be remunerated at levels to be fixed by the public guardian. Welfare guardians will not be remunerated except on cause shown.

Summary

Scots law has been comprehensively reformed over the last two years and the changes were long overdue. The new system, however, provides a complete legal framework that allows for formal intervention in incapacitated adult’s affairs, but only when it is needed and only to the exact extent required. The changes to date have been successful and there is no reason to suppose that the forthcoming changes will not be successful also. Scotland continues to be proud of its lead in this field.

Tom Monteith is Bird Semple Private Client Solicitors, 249 West George Street, Glasgow G2 4RD. He can be contacted at twm@bsemple.com