The Adults with Incapacity Act (Scotland) 2000 sets out the current statutory framework for safeguarding the welfare and managing the finances and property of adults lacking capacity to make those decisions themselves.

Since its enactment in the early part of this century, a number of drivers for reform have emerged. Those have arisen from:

  1. Concerns that the 2000 Act may not be compliant with the right to liberty and security under Article 5 of the European Convention on Human Rights. This arises from certain decisions over the last thirteen years of the European Court of Human Rights and the UK Supreme Court;
  2. Concerns that the 2000 Act may not be fully compliant with the UN Convention on the Rights of Persons with Disabilities, particularly that the 2000 Act may not sufficiently provide support for exercising legal capacity;
  3. Proposals by the Office of the Public Guardian in 2011 to move to a system of 'graded' guardianships based upon the needs of the adult.


As a result, the Scottish Government is now consulting upon proposals to amend the 2000 Act. That consultation document can be found here. Key reforms include the following:

  1. Creation of a statutory principle that an adult's will and preferences would only be contravened where the action is"a necessary and proportionate means of protecting the full range of the adult's rights and freedoms".
  2. Moving to a system of graded guardianship covering both financial and welfare matters. The Scottish Government envisages three grades. A grade 1 guardianship would be used for day to day welfare matters and for managing relatively simple financial matters under a threshold set by regulations. A grade 2 guardianship would be used for managing property and financial affairs above the financial threshold along with more complex welfare needs (including a move of accommodation where there may be a significant restriction upon a person's liberty). Finally,a grade 3 guardianship would hold all the powers of a grade 2 guardianship, but be utilised where there was a disagreement between interested parties (including the adult) about the guardianship application. Intervention orders would be merged into this system.
  3. Provision for power of attorney documents to include consent in advance to care in an environment involving a significant deprivation of liberty.
  4. Creation of the role of official supporter to assist adults with capacity in making their own decisions.
  5. Potential extension of the range of professionals who may carry out capacity assessments for the purpose of guardianship orders. The Scottish Government is seeking consultees' views upon which professionals may be included.
  6. Creation of a short term placement order where an adult with incapacity requires to be moved quickly in the interests of their own safety.

The consultation also asks for views on supervision of and support for guardians, and advance directives setting out a person's wishes about future healthcare. Finally, the Scottish Government has also provided an opportunity for consultees to raise any other changes to adults with incapacity legislation that they feel should be made.

The deadline for responding to the consultation is 30 April 2018.