Hansard

Part 2 is quite technical, so I will not say everything that I was going to say. Instead, I will give you examples of the kind of things the Executive is looking to progress.The Adults with Incapacity (Scotland) Act 2000 allows nominated persons to make decisions on behalf of adults who may lack the capacity to do so themselves on welfare and the management of finances and property.Under the 2000 act, several agencies are involved in supervising those who take decisions on behalf of an adult. The act also set up the office of the public guardian, which has a supervisory role over those who are appointed to manage the property or financial affairs of an adult who lacks the capacity to do so themselves. It also keeps registers of attorneys, people who can access an adult's funds, guardians and intervention orders. Local authorities are responsible for the welfare of adults who lack capacity, while the Mental Welfare Commission for Scotland protects the interests of adults who lack capacity as a result of mental disorder.The Executive commissioned a two-year research programme to monitor the act's implementation. It found that the act was working well, although problems were identified in some areas. During the second session of Parliament, the Justice 2 Committee has been monitoring implementation of the act and, in correspondence following the publication of the research programme, the Deputy Minister for Justice accepted that some legislative changes might be required.In August 2005, the Executive published a consultation on the 2000 act in which it proposed changes aimed at simplifying and streamlining the protections for adults with incapacity. There was broad agreement with what was proposed in the consultation, and in December 2005 the Deputy Minister for Justice advised the Justice 2 Committee that the Executive would seek a suitable vehicle to amend several areas of the 2000 act. The first area is connected with an adult's nearest relative. Members will remember their discussion on the Human Tissue (Scotland) Bill.Under the 2000 act, an adult's nearest relative, in a hierarchy of relatives, has the right to receive information and intimation of certain applications. However, section 4 of that act allows an adult with incapacity to apply to the Court of Session or a sheriff for an order to displace the nearest relative. In other words, the order can change the nearest relative to another in the hierarchy, dictate that no person will be a nearest relative, or restrict the information to be provided to the nearest relative.Such an order is important when the nearest relative might have abused or harmed the adult with incapacity in some way, but the limitation is in the fact that only the adult with incapacity can apply for an order, which might not be possible. Thus, section 52 of the bill proposes that any person who claims an interest in the adult's property, financial affairs or personal welfare may apply to have the nearest relative displaced. It also provides that a court may make an order different from the one applied for, such as naming a different person from the one specified in the application. The second set of proposals concerns powers of attorney. Under the 2000 act, individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed should their capacity deteriorate in future. That can be done by giving another person, for example a relative, carer, professional or trusted friend, power of attorney to look after some or all of an adult's property and financial affairs—otherwise known as continuing powers—or to make specific decisions about their personal welfare, including medical treatment, which is known as welfare powers. All continuing and welfare powers of attorney must be registered with the public guardian. More than 64,000 powers have been registered since the 2000 act came into force, but the Executive believes that a number of changes would help to enhance take-up even more. Those powers are discussed in greater detail in the policy memorandum and the briefing, but I shall provide the committee with an example. One area concerns when the powers of attorney become operational. Essentially, welfare powers of attorney, and financial powers where specified, become operational at the point the granter becomes incapacitated. Continuing powers can continue or start on incapacity. However, unless it is specifically stated in the authorisation document, there is no requirement for the attorney to obtain evidence that the adult has lost the ability to have control over their own affairs, for example through obtaining a medical certificate. That has caused concern among some groups. The Executive was sympathetic to that, but did not agree that a medical certificate should have to be produced before the attorney takes control of the granter's affairs because it believed that it was a matter for the person who is granting the powers of attorney to dictate at what point the powers should come into effect. Instead, the bill proposes a check in the system so that all continuing and welfare powers of attorney becoming operational on incapacity must contain a statement to the effect that the granter had considered how incapacity should be determined. The next key area of the 2000 act that the bill seeks to amend is in connection with intromission with funds—IWF—which is the means by which an individual family member, friend or carer can have the legal authority to access and manage the day-to-day finances of someone who lacks the ability to do so for themselves, for example to pay household bills on behalf of the adult with incapacity. Under the 2000 act, individuals—normally relatives or carers—can apply to the public guardian to gain access to the funds of an adult incapable of managing those funds. The application must be accompanied by a medical certificate stating that the adult is incapable of managing their finances. The application must also be countersigned by someone from a specified group—for example a councillor, teacher or minister of religion—who has known the applicant for at least two years and who also knows the adult with incapacity. Following a number of checks, the public guardian can issue a certificate of authority to the applicant, who then becomes known as the withdrawer. The Executive originally thought that around 20,000 people a year could benefit from IWF. It is now queried how that 20,000 was arrived at. The uptake is currently only 200 a year and the Executive contends that there are many adults who could be taking advantage of the measures but are not. The Executive therefore intends to streamline the process. The proposals are discussed in more detail in the briefing and in the policy memorandum, but one example regards the countersigning regime. The Executive found a number of problems with the regime. Principally, it considered that the existing range of countersignatures is too narrow and inaccessible to many people and that it is based on an outdated perception of the attributes that are attached to members of the specified groups, such as teachers, councillors and ministers. Section 54 of the bill proposes a number of changes, including the removal of the requirement for the countersignatory to be a member of a specified group, the reduction from two years to one year of the specified period that a countersignatory must have known the applicant, and the removal of the requirement that the countersignatory should know the adult with incapacity. The Executive's consultation discussed proposals similar to those and 80 per cent of respondents were in favour of them. However, there were concerns that the countersignatory could be anyone, so there were calls that the countersignatory should have to give details of themselves. I do not believe that that is included in the bill—the committee might wish to clarify that with the Executive. A number of other measures regarding intermission with funds are proposed in the bill, but I do not propose to go into them now. There is a measure for joint and reserve withdrawers, should a withdrawer temporarily or permanently be unable to continue, and there are provisions for the renewal of authority to intromit with funds. The final set of provisions in part 2 concerns intervention and guardianship orders. Intervention orders usually relate to a one-off or time-limited action or decision on behalf of an adult who is not capable of taking the action or making the decision. Guardianship orders are intended to deal with longer-term help or continuous management for three years or more. Both types of order can cover financial, property and welfare matters. The Executive notes that between April 2002 and December 2005, around 520 intervention orders and 2,350 guardianship orders were granted.Guardianship and intervention orders, which are granted by a sheriff following a court hearing, must be registered with the public guardian. Under the 2000 act, applications for both types of order must be accompanied by two medical reports of incapacity that relate to the specific decision-making powers requested. Other reports are required for financial affairs and welfare matters. The purposes of the reports are to establish the appropriateness of the order that is being sought and the suitability of the person who is named to act as guardian or intervener. Under the 2000 act, reports for both orders must be lodged no more than 30 days before the date on which the application is lodged with the court. In cases of financial guardianship or intervention, the sheriff can require the guardian or intervener to find caution—