Scotland has granted free legal aid and advice for people
applying for the welfare guardianship of an adult lacking mental
The move comes as a study is published suggesting that Scotland’s
three-year-old mental incapacity legislation is working well,
although there are concerns about lack of advice and support for
relatives seeking to use its powers.
The Adults with Incapacity (Scotland) Act allows someone who is
losing mental capacity the power to appoint proxy decision-makers,
or for carers to apply to the court to intervene where someone is
incapable of acting in their own best interests.
The act’s new power of attorney has been granted – mainly to
relatives – in nearly 30,000 cases, about two-thirds of which
related to financial affairs, says the study.
But new powers enabling carers to open a dedicated bank account for
someone lacking capacity were used fewer than 200 times each year.
One-off intervention orders were granted 167 times in the third
The study acknowledges the dilemma for officials who must
scrutinise use of the act’s powers by laypeople and help them
understand its procedures.
Relatives found some procedures too bureaucratic and their
experience of the sheriff’s court could be “over-formal and even
The study also found that local authorities were unclear about when
to invoke the act, and often applied for welfare guardianship
powers that were more excessive than the reports suggested were
Alzheimer Scotland welcomed the announcement on legal aid, which it
had campaigned for.
The charity’s convenor, Dr Alan Jacques, said: “The act is one of
the most advanced pieces of legislation on incapacity in the world.
It is looked on with admiration and a little envy in many other
- Go to www.scotland.gov.uk/