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Published by The Scottish Parliamentary Corporate Body

Adults with incapacity

Author: Laura Gilman

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PDF Published: Tuesday 11 Jan 2022 (SB 22-02)

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Report
- Introduction
- Definition of incapacity
- Principles of the Adults with Incapacity (Scotland) Act 2000
- Types of intervention
  - Guardianship
  - Powers of attorney
  - Intervention order
  - Access to funds
  - Benefits appointee schemes
- Supervision
  - Office of the Public Guardian (Scotland)
    
    The functions of the Public Guardian: an overview
    
    The public register: in more detail
    
    Investigations in practice
  - Local authorities
  - Mental Welfare Commission for Scotland
  - Courts
    
    Supervisory powers
    
    Power of attorney
    
    Guardians
    
    Appeals
- Proposals for reform
  - The Bournewood case (2004) and Cheshire West case (2014)
  - The work of the Scottish Law Commission (2012-2014)
  - The work of the Office of the Public Guardian (2011)
  - The Scottish Government’s consultation in 2016
  - The work of the Mental Welfare Commission for Scotland (2017)
  - The Scottish Government's consultation in 2018
  - Current developments in policy and practice
    
    The current work of the Scottish Government
    
    Scottish Mental Health Law Review
    
    Delayed discharge
Sources

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Scottish Government. (2019, March 1). Adults with Incapacity (Scotland) Act 2000: principles. Retrieved from https://www.gov.scot/publications/adults-with-incapacity-act-principles/ [accessed 29 September 2021]

Office of the Public Guardian (Scotland). (2021). What is a guardianship order?. Retrieved from https://www.publicguardian-scotland.gov.uk/guardianship-orders

Office of the Public Guardian (Scotland). (2021). What is a power of attorney?. Retrieved from https://www.publicguardian-scotland.gov.uk/power-of-attorney

Office of the Public Guardian (Scotland). (2021). What is an intervention order?. Retrieved from https://www.publicguardian-scotland.gov.uk/intervention-orders

Scottish Government. (2020, August 17). Acting on behalf of someone claiming benefits. Retrieved from https://www.mygov.scot/acting-on-behalf-of-someone-claiming-benefits [accessed 1 September 2021]

Department for Work and Pensions. (2021). Become an appointee for someone claiming benefits. Retrieved from https://www.gov.uk/become-appointee-for-someone-claiming-benefits

Office of the Public Guardian (Scotland). (2021). Our role. Retrieved from https://www.publicguardian-scotland.gov.uk/guardianship-orders/about-guardianship-orders/our-role [accessed 10 October 2021]

Office of the Public Guardian (Scotland). (2021). Public Registers. Retrieved from https://www.publicguardian-scotland.gov.uk/general/what-we-do/general-faqs

Office of the Public Guardian (Scotland). (2021). Investigations. Retrieved from https://www.publicguardian-scotland.gov.uk/investigations

Office of the Public Guardian (Scotland). (2021). Outcome of the investigation. Retrieved from https://www.publicguardian-scotland.gov.uk/investigations/what-we-do/step-3

Scottish Government. (2008). Adults with incapacity: code of practice for local authorities. Retrieved from https://www.gov.scot/publications/adults-incapacity-scotland-act-2000-code-practice-local-authorities-exercising-functions-under-2000-act/pages/1/

Mental Welfare Commission for Scotland. (2021). Who we are and what we do. Retrieved from https://www.mwcscot.org.uk/about-us/who-we-are-and-what-we-do

Office of the Public Guardian (Scotland). (2021). Changing the order. Retrieved from https://www.publicguardian-scotland.gov.uk/guardianship-orders/following-a-guardianship-order/changing-the-terms-of-the-order

Mental Health Law Online. (2010). HL v UK 45508/99 [2004] ECHR 471. Retrieved from https://www.mentalhealthlaw.co.uk/HL_v_UK_45508/99_(2004)_ECHR_471#:~:text=Rough%20summary%20This%20case%20is%20commonly%20known%20as,hospital%20he%20lived%20with%20carers%20for%20three%20years.

Mental Welfare Commission for Scotland. (2014, September 17). Mental Welfare Commission response to queries related to when to use s13ZA v Guardianship following the Cheshire West Supreme Court decision. Retrieved from https://www.mwcscot.org.uk/sites/default/files/2019-07/cheshire_west_draft_guidance.pdf [accessed 2 September 2021]

Scottish Law Commission. (2014). Report on Adults with Incapacity . Retrieved from https://www.scotlawcom.gov.uk/files/6414/1215/2710/Report_on_Adults_with_Incapacity_-_SLC_240.pdf

Scottish Government. (2015, June 8). Letter from Paul Wheelhouse MSP, Minister for Community Safety and Legl Affairs to The Hon Lord Pentland QC. Retrieved from https://www.scotlawcom.gov.uk/files/3314/3436/9503/Initial_response_from_the_SG_to_Report_on_Adults_with_Incapacity.pdf [accessed 6 October 2021]

Office of the Public Guardian (Scotland). (2011). Early Deliberation on Graded Guardianship. Retrieved from http://www.publicguardian-scotland.gov.uk/docs/librariesprovider3/guardianship

Scottish Government. (2015, December 31). Consultation on the Scottish Law Commission Report on Adults with Incapacity. Retrieved from https://www.gov.scot/publications/consultation-scottish-law-commission-report-adults-incapacity/pages/1/ [accessed 6 October 2021]

Scottish Government. (2016, July 4). Adults with Incapacity legislation review: consultation responses analysis. Retrieved from https://www.gov.scot/publications/analysis-response-scottish-governments-consultationon-scottish-law-commissions-review-adults/ [accessed 6 October 2021]

Scottish Government. (2016). Adults with Incapacity legislation review: consultation responses analysis. Retrieved from https://www.gov.scot/publications/analysis-response-scottish-governments-consultationon-scottish-law-commissions-review-adults/

Mental Welfare Commission for Scotland and Centre for Mental Health and Capacity Law and Business School, Edinburgh Napier University. (2017). Scotland's Mental Health and Capacity Law: the case for reform. Retrieved from https://www.mwcscot.org.uk/sites/default/files/2019-06/scotland_s_mental_health_and_capacity_law.pdf

Scottish Government. (2018, January 31). Adults with incapacity ( Scotland ) Act 2000: proposals for reform. Retrieved from https://www.gov.scot/publications/adults-incapacity-scotland-act-2000-proposals-reform/pages/2/ [accessed 6 October 2021]

Scottish Government. (2018). Adults with incapacity ( Scotland ) Act 2000: proposals for reform. Retrieved from https://www.gov.scot/publications/adults-incapacity-scotland-act-2000-proposals-reform/pages/2/

Scottish Government. (2018, August). Adults with Incapacity (Scotland) Act 2000 Summary and analysis of consultation responses. Retrieved from https://consult.gov.scot/health-and-social-care/adults-with-incapacity-reform/results/adultswithincapacityrefor44.docx [accessed 6 October 2021]

Scottish Government. (2018). Adults with Incpacity (Scotland) Act 2000: Summary and analysis of consultation responses. Retrieved from https://consult.gov.scot/health-and-social-care/adults-with-incapacity-reform/results/adultswithincapacityrefor44.docx

Scottish Government . (2021). Adults with incapacity. Retrieved from https://www.gov.scot/policies/social-care/adults-with-incapacity/#:~:text=The%20Adults%20with%20Incapacity%20(Scotland)%20Act%202000%20defines,a%20mental%20disorder%20or%20an%20inability%20to%20communicate.

Scottish Mental Health Law Review. (2020, December). Scottish Mental Health Law Review Interim Report - December 2020. Retrieved from https://www.mentalhealthlawreview.scot/workstreams/scottish-mental-health-law-review-interim-report-december-2020/ [accessed 6 October 2021]

Scottish Mental Health Law Review. (2021). Scottish Mental Health Law Review. Retrieved from https://www.mentalhealthlawreview.scot/

Scottish Government. (2020). Adults who lack capacity - discharge process: key actions. Retrieved from https://www.gov.scot/publications/key-actions-managing-end-end-discharge-process-adults-lack-capacity-including-legal-measures/

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