Scotland: Incapable Adults (Hansard, 16 December 1998)

§ Lord Sewel

The subject of decision-making on behalf of adults who are unable to manage their own affairs is an important one. The Government have been made fully aware of the issues through the report by the Scottish Law Commission in 1995 and subsequent public consultation, which attracted a substantial and carefully considered response. We accept the need for reform of the existing legislation in this important area of the law that provides support and protection for some of the most vulnerable people in society.

It will be within the competence of the Scottish Parliament to legislate in this area and this statement cannot pre-empt announcements about the Scottish Parliament's legislative programme. It excludes consideration of the SLC's recommendations about medical treatment and research and advance statements. These are sensitive issues and we received many responses on them in the consultation exercise. We have not made any decisions on these matters yet; and we shall also want to consider what emerges from the Lord Chancellor's recent consultation exercise on similar proposals for England and Wales.

We agree with the general principles proposed by the SLC that any intervention should: produce a benefit for the adult; be least restrictive of the adult's freedom; wherever possible encourage the adult to use existing skills and acquire new skills, and take account of the present and past wishes of the adult.

In relation to particular aspects of the report, we agree with the SLC on the following:

The proposed definition of mental incapacity;

The current office of the Accountant of Court should be expanded to form a new office of Public Guardian;

The function of the Public Guardian should be to maintain public registers of all those authorised to take decisions on behalf of an incapable adult and to supervise and monitor the performance of financial guardians;

The recognition of continuing and welfare powers of attorney and the introduction of public scrutiny of the exercise of such powers;

The creation of a new concept of guardianship to provide for a broad and flexible system of one-off intervention orders and longer-term guardianship, with appropriate welfare or financial powers as ordered by the court; and

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That key decisions on applications, and in other proceedings under the proposed legislation, should be dealt with in the sheriff courts.

There are a small number of areas where we propose to vary the SLC's recommendations.

We propose to modify the SLC scheme for carers in domestic settings to have access to funds from the bank accounts of incapable adults, in order to meet daily living expenses. Under the revised scheme, the Public Guardian would grant authority to have stipulated payments made for a time limited period from the incapable adult's account to a designated account. The Public Guardian would have powers to check that the incapable adult's funds were being applied for the intended purpose.

We propose to modify the SLC recommendations that residential homes should apply to the Public Guardian for authority to manage residents' finances. Under the revised proposals, registration and inspection authorities in local authorities and health boards would authorise the managers of residential establishments to manage the funds of residents who are incapable of so doing, up to prescribed limits, and in circumstances where no other arrangements would be appropriate for managing the finances of these residents.

We do not propose to follow the SLC recommendation that the Public Guardian should be able to be appointed as financial guardian to an incapable adult. We take the view, however, that the arrangements recommended for withdrawals from bank accounts and for intervention orders, and also for management of finances by residential establishments, should be sufficient to meet the needs of incapable adults with modest estates. The Public Guardian's functions will be focused on maintaining public registers of guardians and monitoring and supervising guardians with financial powers. Local authorities and the Mental Welfare Commission will monitor those exercising welfare powers on behalf of incapable adults.