Personal Law

Dementia Awareness Action Week brings mental health into focus and it is, therefore, an opportune time to reflect on the Scottish Government’s recent consultation proposing reforms to the Adults with Incapacity Act (Scotland) 2000 (the “Act”). The Act sets out the framework for safeguarding the financial and welfare interests of adults who lack the capacity the make decisions regarding their finances, property, health or welfare.

What is guardianship?

In Scotland, it is open to anyone with capacity to put a power of attorney in place. This is a document that allows you to appoint a person(s) to make decisions regarding your property and welfare in the event that you lose capacity to make these decisions yourself.

However, if someone loses capacity and does not have a power of attorney in place, it may be necessary for their family or a close friend (or the local authority where the family is not able or willing to act) to apply to the Scottish court to be appointed as their financial and / or welfare guardian. This can often be a long, expensive and fairly stressful procedure and there are also on-going reporting duties that the guardian(s) must comply with which are fairly burdensome and increase costs.

What are the proposed changes?

The consultation proposes numerous reforms to the Act, including proposals to modernise the guardianship application process with a view to making it more streamlined and efficient. The consultation extends to 72 pages and it is not possible to summarise all of the proposals in this blog but some of the proposals relating to guardianships are summarised as follows:

Graded guardianships

The consultation proposes moving to a system of graded guardianship. Introducing graded guardianship would provide for three levels of guardianship rather than the existing one.

  • A grade 1 guardianship would be used for day to day welfare matters and for managing relatively simple financial matters below a certain threshold. The application would be made to the Office of the Public Guardian and the appointment of the guardian would be for a maximum period of 3 years.
  • A grade 2 guardianship would deal with more complex circumstances, or where the financial assets were above the Grade 1 threshold. It would require an application to the court although there would be no court hearing. The appointment would be for 5 years.
  • A grade 3 guardianship would deal with the most complex circumstances and, as you would expect, a court hearing would be necessary. The guardian’s appointment would be for a maximum period of 5 years.

The primary objective of these proposals is to provide more flexibility in relation to the process and on-going supervision and to tailor this to the individual circumstances of the adult who is the subject of the guardianship application. Moreover, the framework of graded guardianship seeks to increase the participation of the adult who is the subject of the application, and to give them more autonomy.

Changes to supporting reports

Currently, a guardianship application must be accompanied by (1) two medical reports, including one by an approved mental health doctor; (2) a report by a Mental Health Officer, and, in most cases, (3) a solicitor must also prepare a report on the suitability of the proposed financial guardian. These reports all need to be dated within 30 days of the first reporter’s assessment so a lot of co-ordination is required.

To simplify this process, the consultation proposes to reduce the number of reports that would be required and to replace some of the reports with an incapacity certificate and a declaration by the Office of the Public Guardian as to the suitability of the proposed financial guardian(s). The precise reports required will depend on the Grade of the guardianship.

Utilising the Mental Health Tribunal

Currently, a guardianship application is made to the relevant Scottish Sheriff Court and the Sheriff will decide whether to grant the guardianship order in the terms sought by the applicant(s).

However, the consultation proposes that the Mental Health Tribunal (or an alternative but similar tribunal system) would be a better forum for guardianship applications. This proposal is in keeping with the Scottish Government’s desire to make the process more user friendly and to also make the process more straightforward so as to encourage participation from all interested parties, in particular the adult who is the subject of the application.

These are just some of the proposals contained in the consultation which, if enacted, would benefit the adult who lacks capacity and also their guardian(s). The deadline for responding to the consultation was 30 April 2018 so we will wait with anticipation to see whether any of these proposals are taken forward by the Scottish Government. In the meantime, the over-riding message to everyone is to put a power of attorney in place at the earliest opportunity.

If you would like to discuss any of the issues raised in this blog, please telephone Brodies’ Personal & Family department on 0131 228 3777.

Nicola Neal

Nicola Neal

Associate at Brodies LLP
Nicola is an Associate in the Private Client department. She is involved in a broad range of work within the Wills Executry team. Nicola has experience and a particular interest in contentious Private Client matters, including challenges to the validity of wills by disappointed beneficiaries, claims by cohabitants on death and administering judicial factories.
Nicola Neal