Adults with Incapacity Legislation in Scotland – Changes Afoot?

Some of you may be aware that there has been a recent Consultation (closed end of April) in which opinions were sought by the Scottish Government on proposed amendments to the current Adults with Incapacity legislation in Scotland (Adults with Incapacity (Scotland) Act 2000) Whilst there have been many consultation papers, and in some cases very little action (I am looking at you, Legal Rights!) the time seems right to review the Adults with Incapacity legislation which has now been in place for 18 years. More importantly there may be an appetite within the Scottish Government to progress with updated legislation given the UN Convention of the Rights of Persons with Disabilities recommendations and a cynic may say the wish of the Scottish Government to keep on the right side of the UN.

The Consultation covered a wide variety of topics which I do not anticipate covering in this article, however I thought it useful to discuss some of the highlights in order to tell those south of the Border what may be coming over the Scottish horizon namely:

  • Deprivation of Liberty
  • Advance Directives
  • Graded Guardianships
  • Official Supporters

Deprivation of liberty

Since the Cheshire West case in 2014 (P v Cheshire West and Cheshire Council [2014] 1 AC 896), I think that we can all agree that some clarification in terms of the ability for an attorney to deprive someone of their liberty would be very welcome.  One of the proposals contained in the Consultation is that a specific provision would have to be included in future Powers of Attorney which would detail the circumstances in which an attorney could consent to the deprivation of the Adult’s liberty and how such a deprivation is to be regularly reviewed.  Whilst this may be a welcome addition to the legislation, it is very much hoped that there would be a standard wording to avoid each firm trying to reinvent the wheel. It also fails to address the issue where deeds were executed prior to the introduction of the new law, which will leave many clients without an immediate remedy.

Advance Directive

Advance directives are becoming increasingly popular in Scotland but are not legally binding and are simply a declaration of wishes.  While there were no recommendations proposed under the Consultation, opinions were invited as to whether this should change.  It would seem sensible that this is brought in line with the English provisions which are much more robust in terms of respecting an adult patient’s wishes.

Graded Guardianship

There was discussion as to what the right forum to hear guardianship and intervention order cases should be: Sheriff Court (as is currently the case); or Mental Health Tribunal.  In either case there is a suggestion that graded guardianships based on assets and risk be introduced with three grades. The most contentious cases would require the full hearing either by Sheriff or the Tribunal with the least being subject to approval by the Office of the Public Guardian.  The Office of the Public Guardian has been starting to take a risk approach as evidenced by the introduction of the Professional Guardian scheme and this seems a natural progression of this.

Official Supporter

There was a suggestion that an official supporter be introduced as a recognised role whereby an Adult could nominate an official supporter who would get access to the necessary information and could support them in their decision making.  This would differ from an Attorney who could take on the decision making: a supporter would not have that authority.  On the basis that banks and other institutions can struggle to understand the authority of an Attorney, the question as to how a supporter would be allowed to access the accounts and where their authority would end is somewhat troublesome.  Moreover, in terms of the principles of the current Adults of Incapacity Act, where the past and present wishes of an adult should be respected and they should be encouraged to exercise whatever skills they have, one may argue that an attorney should already be fulfilling that position unless otherwise requested or required by virtue of the Adult’s wishes and/or ability.

There are many more suggested amendments to the current legislation and the Consultation Paper, some very thought provoking. It will be interesting to see how this develops over the coming months.  It seems likely that changes will indeed be afoot.

A Report is expected to be published in the summer containing the responses to the Consultation and the expectation is that time will be set aside for a Bill in the Parliamentary calendar over the following year…..time will tell.

(Author: Lianne Lodge, Legal Director at Gillespie Macandrew)

Scottish corner – Burial and Cremation (Scotland) Act 2016

In Scotland, 2016 saw the passing of the Burial and Cremation (Scotland) Act 2016 (“the Act”).  The 7 Parts making up the Act deal in turn with each of burial, cremation, arrangements, inspections, funeral directors and finishing with the miscellaneous and general provisions.  These parts each deal with providing guidance and regulation in respect of these areas on death.  Whilst not yet in force (although intended to come into force in the coming months), perhaps the most relevant part of the Act to an SFE practitioner in their day to day work will be section 65 of Part 3 – Arrangements.  Indeed, it would be prudent for practitioners to incorporate the principals of this Part into practice now, even before it comes into force.

Section 65 of Part 3 of the Act deals with the arrangements on the death of an adult and introduces the concept of an arrangement on death declaration.  Whilst most Scottish Wills are likely to include a statement as to whether the testator wishes his/her body to be buried or cremated and indeed some testators may go even further with a separate letter of wishes providing detailed guidance in terms of the conduct of their funeral, burial place or wishes regarding scattering of ashes, the arrangement on death declaration takes this a step further by specifically nominating someone to arrange the funeral and burial/cremation.

Section 65(8) of the Act states that an arrangement on death declaration is a declaration “specifying the person by whom the adult wishes the arrangements to be made for the burial or cremation of the adult’s remains on the adult’s death”.  This is a fairly straightforward concept and can be easily incorporated into practitioners’ styles without much amendment.  A simple declaration as part of the funeral instructions clause stating who should organise the funeral and burial/cremation will be sufficient.  Of course, should the testator prefer, this declaration can be incorporated into a separate declaration to be held alongside the Will.

Given that there will be numerous adults without such a declaration in place, the majority of section 65 of the Act provides for the circumstances where there is no such declaration in place.  Section 65(2) of the Act states that the person who can arrange the burial or cremation is the “nearest relative” with s.65(3) setting out the order of preference for a nearest relative.  The list within s.65(3) is generally as to be expected, but does highlight the importance of practitioners’ knowing their clients well and their family dynamics.  Top of the list is spouse/civil partner followed by cohabitee, then children.  Whilst in the majority of cases this is likely to reflect a testator’s wish, any practitioner can imagine a situation where this preference in itself could cause problems for a family on death.  Encouraging the use of an arrangement on death declaration or at least highlighting the order of “nearest relatives” to clients is of vital importance to ensure a testator’s wishes are met for their final send off.

(Author: Nicola Gibson)


Monthly members update: March

Leamington legal firm to host dementia café, Leamington Courier

(also in the Kenilworth Weekly News and The Warwick Courier)


Legal Service team expands at Swindon professional services firm, Swindon Link

(also in Business Biscuits)


Five promotions at Wace Morgan, Love Shrewsbury

(also in Midlands Business News)


Mr Philip Davies Committee Volunteer for PALZ UK, Love Shrewsbury


Patrick Swanney joins WHN, Lancashire Business Review


Optimum Professional Services expands legal team with solicitor appointment, Swindon Business News


Three promotions at Wisbech branch at Metcalfe Copeman and Pettefar solicitors, Wisbech Standard


Rejuvenating a practice, Shropshire Business

Firm PCB in Shrewsbury appointed 5 new partners, including SFE and STEP member Pauline Davies.


Lester Aldridge Private Client Team increases STEP offering, Business South


Three promotions as Wisbech law firm, Cambridgeshire Times

The Wisbeach branch of Metcalfe Copeman and Pettefar solicitors made 3 new promotions, including SFE member Sarah Gregory becoming an associate.