United Kingdom - Scotland
2010: Legal capacity and proxy decision making
The first two articles of the Adult Support and Protection (Scotland) Act 2007 contain guiding principles for people intervening in an adult’s affairs. The first article states that a person may intervene or authorise intervention only if satisfied that the intervention will provide benefit to the adult which could not be reasonably provided without such intervention and that of the range of options available, it is the one which would least restrict the adult’s freedom.
The second article states that a public body or office-holder who is authorised to intervene in an adult’s affairs should have regard to the general principle on intervention in an adult’s affairs and to the adult’s ascertainable wishes and feelings (past and present). The views of the adult’s nearest relative, primary carer, guardian or attorney, or any other person with an interest in the adult’s well-being or property should be taken into consideration. The importance of involving the adult and respecting his/her individuality is highlighted. It should be ensured that s/he participates as fully as possible in the performance of the function and in addition that s/he is provided with the information and support necessary to enable such participation.
The adult must not, without justification, be treated less favourably than other adults who are not at risk might be treated in a comparable situation. His/her abilities, background and characteristics (including the age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage) should also be taken into consideration.
Proxy decision making
The Adults with Incapacity (Scotland) Act 2000 covers issues related to the property, financial affairs and personal welfare of adults with incapacity due to a mental disorder (or difficulties communicating). As such, it covers guardianship as well as continuing powers of attorney and welfare powers of attorney. It also covers intervention orders which are for one-off decisions or actions i.e. in cases where a ‘once only’ decision is necessary. The Act was amended through Parts 2 and 3 of the Adult Support and Protection (Scotland) Act 2007.
In the past, people with learning disabilities were sometimes "boarded out" with unrelated guardians. This practice can be traced back to the mid-nineteenth century. It became legally binding in 1913 and was extended to cover all people with a mental disorder in 1960. However, in 1982 the Government rejected "boarding out" as a solution to protecting the welfare of people with mental disorders and the alternative solutions were found in the provisions of the Mental Health (Scotland) Act of 1984.
Under the Mental Health (Scotland) Act 1984, it was possible to appoint a mental health guardian as well as more archaic forms of guardianship such as the curator bonis, the tutor-at-law or the tutor-dative (details can be found in the Lawnet report of 1999). Situations arose whereby a person had three different kinds of guardian, e.g. a guardian (as appointed under the Mental Health (Scotland) Act 1984), a curator bonis for financial management and a tutor-dative for medical decisions. The Adults with Incapacity (Scotland) Act 2000 phased out these forms of guardianship and the holders of such offices were made guardians under the new Act.
Conditions for the appointment of a guardian
Any person (including the person him/herself) with an interest in the property, financial affairs or personal welfare of the adult with presumed incapacity can apply to the sheriff for a guardian to be appointed.
Before starting the process for a guardianship order, the sheriff must be satisfied that the adult is incapable of making or acting on a specific decision or decisions, , safeguarding or promoting his/her interests relating to his/her property, financial affairs or personal welfare; that s/he is likely to continue to be incapable of such acts and that no other means provided by or under the Adults with Incapacity (Scotland) Act 2000 would be sufficient (article 58).
Within this Act, an adult is understood to mean a person of 16 years and over. Incapacity is defined as being incapable of acting, making decisions, communicating decisions, understanding decision or retaining the memory of decisions by reason of mental disorder or inability to communicate due to a physical disability.
How guardianship is arranged
Not more than 30 days before the application for a guardianship order is lodged in court, reports of an examination and assessment of the adult by at least two medical practitioners must be provided. If the incapacity is due to mental disorder, one of the medical practitioners must be “a relevant medical practitioner”. If the application only relates to property or financial affairs, the report must be based on an interview or assessment of the adult by a person who has sufficient knowledge to make such a report.
If the applicant only has an interest in the personal welfare of the adult and is not the local authority, s/he must notify the chief social work officer of his/her intention. The latter or alternatively, the mental health officer, must prepare the necessary report within 21 days. The guardian may be asked to provide caution or some form of security that the sheriff sees fit.
At any time during the application process, the sheriff may make an order for the appointment of an interim guardian for up to 3 or a maximum of 6 months.
The adult must be officially informed of the appointment of a guardian.
Who can be a guardian
The sheriff may appoint any person whom s/he considers suitable and who has consented to being appointed as a welfare and/or financial guardian. If the measure is only to cover personal welfare and there is no suitable family member or friend willing or able to apply, the chief social work officer of the local authority can apply to be appointed.
Where the local authority has assessed that a financial guardian is needed, and there is not suitable family member, the local authority cannot nominate its self. The local authority can nominate a professional, for example a solicitor or an accountant to be the financial guardian.
For any individual to be appointed guardian, the sheriff must be convinced that s/he is aware of the adult’s situation and circumstances and the functions of a guardian. In addition, the sheriff must ensure that the guardian would have access to the adult with incapacity, be capable of carrying out the functions of guardian and not be likely to have a conflict of interests with the adult with incapacity. Any possible reasons for the unsuitability of the individual must be considered by the sheriff. These conditions can be found in article 59.
If at any time, the guardian is unable to fulfil his/her functions, a substitute guardian can be appointed for the same period of time as the original guardian. This can even be arranged in advance e.g. when the original guardian is appointed.
The duties and responsibilities of guardians
Article 64 covers the functions and duties of guardians which include the power to deal with property, financial affairs or personal welfare of the adult with incapacity as specified in the guardianship order. If authorized to deal with personal welfare, it may be specified in the order that the guardian has the right to defend or pursue an action to annul a marriage or to divorce or separate in the name of the adult with incapacity, or to manage certain parts of the property or financial affairs of the adult. A guardian does not have the power to place the adult with incapacity in hospital for treatment of mental disorder against his/her will or to make certain decision on his/her behalf in relation to the Anatomy Act 1984.
Managing the finances of the person on guardianship
The financial affairs of the adult may be managed by a guardian provided that the latter has been given the necessary powers. Schedule 2 of the Adults with Incapacity (Scotland) Act 2000 deals with the management of the estate of the adult. It stipulates that the guardian must draw up a management plan for the management, investment and realization of the adult’s estate, taking into account the adult’s needs and insofar as s/he has been granted the necessary powers. The plan must be submitted to the Public Guardian for approval.
Also, as soon as possible after taking up his/her office (but within 3 months), the guardian must draw up an inventory of the adult’s property or financial affairs. The Public Guardian may free the guardian from this obligation or may ask the guardian to do something else instead.
All money received by the guardian must be deposited in a bank or building society in an account in the name of the adults and ensure that amounts exceeding £500 (or another specified amount) generate interest.
The guardian may be authorized to carry on a business on behalf of the adult with incapacity. The guardian may not, without the consent of the Public Guardian, purchase accommodation for, or dispose of any accommodation currently being used a dwelling house by, the adult.
Measures to protect the adult from misuse of power
Guardians have to keep records of the work they do on behalf of the person with incapacity (article 65). They can be withdrawn or have their powers amended if the Public Guardian decides that a particular measure is no longer needed, is not being correctly handled by the guardian or could be managed in another way without the necessity for guardianship.
If a guardian uses the funds of the adult even though s/he does not have the power to do so; or whilst aware of the termination or suspension of existing powers; s/he is liable to repay the funds with interest (article 81) unless s/he acted reasonably or in good faith (article 82).
Compensation and liability of guardians
Article 68 deals with the reimbursement and remuneration of the guardian. It states that the guardian is entitled to be reimbursed out of the estate of the adult with incapacity for any outlays reasonably incurred in the exercise of his/her functions. This is not applicable in the case of chief social work offers taking care of the personal welfare of the adult.
When fixing the remuneration of the guardian, the Public Guardian takes into account the value of the estate of the adult with incapacity. If a guardian is found to be in breach of any duty of care or of any other obligation linked to guardianship, part or all of his/her remuneration may be withheld (article 69).
Duration of guardianship
Guardians are appointed for 3 years or any other period of time, including indefinitely, as decided by the sheriff. A guardian can resign from his/her function but may be requested to wait until a replacement guardian has been found.
The right to appeal
Anyone found incapable for the purposes of the Adults with Incapacity Act may appeal to the sheriff against the finding. The adult him/herself or anyone with an interest in the subject matter of the decision may make an appeal (s14). A person can also appeal to the sheriff principal against a sheriff’s decision about incapacity. There is a further appeal, with permission of the court, to the Court of Sessions.
Powers of Attorney
Continuing powers of attorney
A power of attorney relating to property or financial affairs which continues to have effect in the event of the granter’s becoming incapable of managing that property or those affairs is known as a continuing power of attorney. This is covered by Part 2 of the Adults with Incapacity (Scotland) Act 2000.
For a continuing power of attorney to be valid, certain conditions must be fulfilled, such as:
- It must be made in writing by the granter
- It must be clearly stated the granter wishes it to be a continuing power.
- the granter must indicate that s/he has considered how they want incapacity to be determined if the power is only to be valid once the granter is incapable of handling a specified matter
- A certificate in the prescribed form must be obtained from a solicitor or other authorised person.
The solicitor (or other authorised person) must have interviewed the granter immediately prior to the granter signing the document. S/he must be satisfied, based on his/her own experience or as a result of information provided by named individuals, that the granter understood the ‘nature and effect’ of the document (s16(3)) S/he must also state that s/he has no reason to believe that the granter was acting under undue influence or that any other factor vitiates the granting of the power.
The continuing power of attorney ends if the granter or the attorney is declared bankrupt.
Welfare powers of attorney
A person may grant a power of attorney relating to his/her personal welfare in accordance with the provisions of Part 2 of the Adults with Incapacity (Scotland) Act 2000.
For a welfare power of attorney to be valid, certain conditions must be fulfilled, such as:
- It must be made in writing by the granter
- It must be clearly stated the granter wishes it to be a welfare power.
- It must indicate that the granter has considered how incapacity relating to the decisions covered by the welfare power should be determined.
- A certificate in the prescribed form must be obtained from a solicitor or other authorised person.
The same requirements apply to the certificate from the solicitor (or other authorised person) as mentioned above in the section on continuing powers of attorney.
A welfare power of attorney can only be granted to an individual (not a person acting in an official capacity such as officer of a local authority) and does not come into force until the granter has lost the capacity for decisions related to matters contained in the welfare power of attorney. It does not end if the granter or the attorney goes bankrupt.
A welfare attorney cannot place the granter in hospital for the treatment of mental disorder against his/her will or make certain decisions which fall under the scope of the Anatomy Act of 1984.
If the granter intends the attorney to be able to make medical decisions on his/her behalf this must be specifically stated in the document.
General issues linked to continuing and welfare powers of attorney
The granter can appoint one or more attorneys who can be granted welfare and/or financial powers.
The deed should indicate if the attorneys can act alone or must always act jointly. The granter may wish to appoint a substitute attorney in case the first attorney cannot act.
The attorney only has authority to act once the power of attorney has been registered. A continuing or welfare attorney should not be obliged to do anything which is unduly burdensome or expensive (in comparison to it value or utility) even if it is within the scope of his/her powers. Attorneys must keep records of their activities on behalf of the granter.
The granter of a continuing or welfare power of attorney may revoke it after it has been registered subject to certain conditions being fulfilled i.e. the revocation must be in writing and incorporate a certificate in due form by a solicitor or other authorised person who certifies that s/he has interviewed the person and that the person understood the effect of the revocation and is making the decision freely.
The attorney may resign after the document conferring power has been registered. If the granter and the attorney are married the power of attorney would come to an end if they separated or divorced or if the marriage was annulled. In the case of civil partnerships, the same would apply in the case of separation, dissolution or nullity of the partnership.
Other provisions for the management of funds under the Adults with Incapacity (Scotland) Act 2000
Access to Funds Scheme
There are provisions under Part 3 of the Adults with Incapacity (Scotland Act) 2000 for a private individual to manage the funds of someone with incapacity where his/her income and assets are not complex. It also allows organisations to apply for approval to manage the funds of an individual where there is no private person available to do so. It involves the setting up and operating a designated bank account in the name of the adult. An application to the scheme is made to the Office of the Public Guardian. It is an inexpensive way to manage funds in circumstances where the adult does not own property and financial guardianship is not necessary.
Management of residents’ funds in a care home or hosptial
There are special provisions in the Part 4 of the Adults with Incapacity (Scotland) Act 2000 for financial management by a care home manager or hospital for a resident/long term patient who lacks capacity to do so for themselves and there is no other interested person to do so. This might include claiming, receiving, holding and spending the person’s pension, benefit, social security allowance or money to which the adult with incapacity is entitled, as well as holding or disposing of the resident’s moveable property. This scheme is appropriate for managing funds where the adult does not have substantial savings. Where savings are above a prescribed limit the local authority must nominate a professional financial guardianship to manage the adult’s funds.
Capacity in specific domains
Marriage and divorce
A marriage is valid provided that both parties were mentally capable of understanding the nature of marriage and of consenting to it at the time it was contracted/celebrated. As only limited mental capacity is required for the fulfilment of these criteria , the appointment of a curator bonis (no longer applicable) or a guardian does not necessarily affect the right to marry. Indeed, according to article 304 of the Adults with Incapacity (Scotland) Act 2000, the appointment of a guardian does not imply that the adult loses capacity in an area that the guardianship order does not cover. So a guardian cannot consent to or prevent a person from marrying. On the other hand, a guardian may be granted the power to pursue or defend the nullity of marriage, separation or divorce.
Under section 5 of the Marriage (Scotland) Act 1977, the guardian, like any other person, can object to a marriage by submitting an objection in writing to the district registrar who has been informed of the intention of the person in question to marry. If the objection is made on the grounds that the person does not understand the nature of the marriage ceremony or of consenting to marriage, it must be accompanied by a medical certificate. The registrar then notifies the Registrar General who decides whether the marriage may proceed. Anyone who disagrees with the decision of the Registrar General may apply to the court for a decision.
If a person is married, his/her spouse is legally obliged to provide maintenance. This means that the local authority can ask the spouse to contribute towards the cost of care.
Having a guardian does not prevent a person from voting.
A person is presumed to be competent and hence capable of entering into a legal transaction unless the contrary is proven. According to the Scottish Law Commission (1991), capacity (or lack of it) is determined after consideration of medical evidence and also on the basis of what was said and done at the time of a particular transaction. Moreover, for a transaction to be considered as invalid, the person's incapacity must have affected the transaction in question. If incapacity is determined, a transaction is declared void and this applies irrespective of whether the other party was aware of this incapacity.
An adult with incapacity for whom a guardian has been appointed does not have the right to enter into any transaction covered by the powers of his/her guardian. The guardian would be personally liable for any transaction carried out on behalf of the adult with incapacity if the former had not disclosed that s/he was acting on behalf of the latter (article 67 of the Adults with Incapacity (Scotland) Act 2000).
If a third party enters into a transaction with an adult whom he knows is under guardianship, the transaction would not be regarded as void solely on the basis of the incapacity of the adult under guardianship (article 56 (5) of the above-mentioned act).
Transactions involving the sale of goods
Section 3 (2) of the Sale of Goods Act of 1979 provides a certain degree of protection against unscrupulous sellers, whilst also ensuring that an incapacitated person pays for goods or services which are classed as necessaries. It states that:
"Where necessaries are sold and delivered to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them."
Necessaries are defined under 3 (3) as "goods suitable to the condition in life of the person concerned and to his actual requirements at the time of the sale and delivery." Suitability to a person's condition refers to his/her place in society and not his/her mental or physical condition. It has been established in case law that a person's requirements are determined by what s/he already possesses. If the person already possesses a sufficient quantity of a particular item and then purchases a large quantity of the same item, it would be unlikely to be considered as a necessary. People covered by the Sale of Goods Act of 1979 must pay a reasonable price for goods and this is not necessarily the sale price.
Unfortunately, this law depends on the supplier making enquiries as to the person's actual requirements. It doesn't apply to contracts of hire purchase, barter or contracts for the supply of services to the incapacitated person.
A person can only make a will if s/he has the mental capacity to do so. Mental disorder does not of itself render a will void. Forgetfulness or confusion is not of itself enough to mean that a person does not have capacity, if s/he understands the nature and effect of the will. If no will is left, a person's possessions are divided according to fixed legal rules. Anyone wishing to challenge the validity of a will can do so through the Court of Sessions. The onus is on the person contesting the will to prove that the grantor was not capable at the time of subscription. A guardian cannot make a will on behalf of a person with incapacity.
The law (in both Scotland and the rest of the UK) has little to say about the liabilities of people with incapacities for civil wrongs. Some general rules can, however, be stated.
The elements required to establish the particular civil wrong may not exist if the person has a serious mental disorder. If, for example, a particular mental element is required, such as malice or wilful recklessness, the person’s mental disorder may mean s/he is incapable of having such an intention and could not be held liable.
All civil wrongs require some mental element, or at the very least, a voluntary action. Thus if the person was sleep walking or acting under a paranoid delusion, it would not be right to hold him/her liable. The test might be whether the person was able to appreciate the nature or wrongfulness of the conduct, as in the criminal law.
Some civil wrongs incur strict liability, meaning a person can be held liable regardless of his/her intentions. However even in these cases, a person should not be held liable if s/he lacked the mental capacity to commit a voluntary act.
Even where there is no liability for damages, Patrick and Killeen (2010) suggest that the court would retain the power to grant an order demanding that certain actions cease, for example, the publication of slander or loud music coming from the person’s house.
If the person is unable to take part in civil proceedings, the court will appoint someone to represent his/her interests.
Under the Criminal Procedure (Scotland) Act 1995 s57 as amended by Mental Health (Care and Treatment) Scotland Act 2003 and Criminal Justice (Scotland) Act 2003, the court has a range of options when someone is acquitted because of ‘insanity’ or was not fit to plead and an examination of the facts decides the person committed the offence. Options include a compulsion order authorising detention in hospital and welfare guardianship or welfare intervention order under the Adults with Incapacity (Scotland) Act 2000. This is only possible if the person has been found to be suffering from a mental disorder of a nature or degree which warrants his/her reception into guardianship, but is not possible in the case of a crime such as murder where the sentence is fixed by law. The court must be satisfied that this measure is the most suitable and is necessary for the welfare of the person. The court requires reports from two doctors (one of whom must be an approved medical practitioner under the Mental Health (Scotland) Act, confirming that the grounds for the order apply to the person. The court requires a mental health officer to interview the person and prepare the report. It may require a report from a criminal justice social worker as well as this report. Where the adult has a mental disorder and is incapable of protecting his or her own welfare and that no other means are available are grounds for making a welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000 and appointing the Chief Social Work Officer of the local authority as welfare guardian.
- Scottish Law Commission, Mentally disabled adults; Legal arrangements for managing their welfare and finances. Discussion paper N°94. September 1991.
- Patrick, Hilary and Smith, Nicola (2009), Adult Protection and the Law in Scotland, Bloomsbury Professional
Last Updated: Wednesday 28 March 2012