Reform To Adults With Incapacity Legislation – Consultation

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:

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; 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; 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. Reform

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:

Creation of a statutory principle that an adult's will and preferences would only be contravened where the action isa necessary and proportionate means of protecting the full range of the adult's rights and freedoms. 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...

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