Personal Law

Acting as an attorney or guardian for a relative or friend is a serious undertaking and it is crucial to understand what is expected of you if you find yourself having to make decisions for someone who no longer has capacity. Recent news coverage regarding controversial proposals for mental health and incapacity law reform in England and Wales prompted me to think about the challenges faced by attorneys and guardians in Scotland.

Controversial proposals for mental health and incapacity law reform in England and Wales

The right to liberty and the way in which this interacts with UK mental health and incapacity law were brought to the fore following proposals for reform in England and Wales. Suggested changes have been the subject of considerable criticism as they could see society’s most vulnerable detained against their will for up to 3 years without review and would give a bigger say to care home managers in deciding whether or not an adult with mental health issues (including dementia) should be living in a care home. A number of charities believe this does not offer sufficient protection for those suffering from mental health issues and will create a conflict of interest for managers who stand to profit from greater care home occupancy. The government insists that simplification of the procedure is necessary given the cumbersome nature of current rules.

The right to liberty under adults with incapacity law in Scotland

The proposed changes are limited to England and Wales but nevertheless highlight the importance of understanding your duties as an attorney or a guardian, including the relationship between the right to liberty and the law on adults with incapacity in Scotland. You should be mindful at all times of the extent of your powers. Scottish law at the moment is unclear as to whether welfare attorneys can consent to care arrangements that amount to deprivation of liberty where such arrangements are resisted or opposed by the adult in question (even where this power is expressly included in the power of attorney document). Attorneys who find themselves in this situation and are unsure about what to do should obtain directions from the Sheriff Court. It is generally accepted that a guardianship order which includes the necessary powers is enough to allow deprivation of liberty but this is open to dispute as it is not specifically authorised in term of the Adults with Incapacity (Scotland) Act 2000. Welfare guardians should tread carefully when making decisions that could constitute deprivation of liberty and should apply to the Sheriff Court for direction if necessary.

While Scotland has long been considered a world leader in the sphere of adults with incapacity, the law in this area is constantly evolving and the Scottish Government’s current proposals for reform aim to simplify procedure and address some of the issues surrounding deprivation of liberty. You can read more about some of the proposed procedural changes (and how these relate to guardianships) in my colleague Nicola Neal’s blog on the subject.


Exercising your powers under a power of attorney or guardianship – know your limits

If you are acting as an attorney under a continuing or welfare power of attorney, or as a guardian, you should be aware always of your powers and their limitations. The Office of the Public Guardian for Scotland publishes a wealth of guidance for attorneys and guardians and Scottish Government has issued Codes of Practice which you can access here. You can read about a continuing attorney’s power to make gifts in Susanne Batchelor’s blog on the subject here.

It’s never too early to talk

The past and present wishes of the adult must always be considered and, if you are currently acting as an attorney or guardian you should endeavour to understand what the adult’s views are at all times, even if he or she no longer has capacity. Likewise, if you have been appointed by a friend or relative as an attorney (but are not yet acting), you should speak to them now to get an idea of what they might want for themselves if they were to lose capacity in the future. Remember, it’s never too early to start the conversation.

If you have been appointed as an attorney or a guardian and need advice about your duties, rights and responsibilities please contact Brodies’ Personal and Family Department on 0131 228 3777.

Jessica Flowerdew

Associate at Brodies LLP
Jessica is an associate in private client law at Brodies. She has a wide range of experience and advises a breadth of clients on all aspect of personal law matters.
Jessica Flowerdew