IHTM12251 - Succession: Scottish Prior and Legal rights: Legal rights: Adults with incapacity
Scots law governing incapacity has recently gone through a very important transition following the enactment of the Adults With Incapacity (Scotland) Act 2000 which came fully into force from 1 July 2002.
Under the old law, where an adult prospectively entitled to claim or discharge (IHTM12229) legal rights (IHTM12221) lacked full legal capacity, decisions could, in certain circumstances, be taken on their behalf by a ‘curator bonis’, if necessary, with the approval of the court.
Under the new Act the protective measures for adults with incapacity are entirely different. Existing ‘curators bonis’, acting when the Act comes fully into force on 1 July 2002 will retain the powers then held, but otherwise will become guardians under the new regime.
Under S1(6) ‘incapable’ is defined as meaning incapable of
- acting, or
- making decisions, or
- communicating decisions, or
- understanding decisions, or
- retaining the memory of decisions, by reason of mental disorder or inability to communicate because of physical disability.
The Act rests on 4 basic principles
- any intervention must be shown to be necessary
- the option least restrictive to the adult’s freedom must be selected
- present and past wishes and feelings must if at all possible be taken into account and others should be consulted
- exercise and development of the adult’s skill’s should be encouraged where reasonable and practicable.
These principles are a mix governing personal welfare and property and financial management. Principles 1 and 3 appear relevant to issues like the treatment of legal rights.
The Act introduced very important provisions in relation to Powers of Attorney. Powers contained in a Continuing Power of Attorney (or CPA) might have relevance to legal rights but such powers cannot be implied. They must be express in their terms.
You should refer any cases involving the application of the Adults With Incapacity (Scotland) Act 2000 to Technical.