Adults with Incapacity (Scotland) Act 2000

Incapacity is not an all or nothing concept and this is not always clearly understood by a range of people from relatives or friends of clients to professionals, such as prospective lenders and even solicitors. The law of Scotland generally presumes that adults (people aged 16 or over) are legally capable of making personal decisions and managing their own affairs.

The Adults with Incapacity (Scotland) Act 2000 (the Act) introduced new or revised arrangements for making decisions about the personal welfare, including health, and managing the property and financial affairs for adults whose capacity to do so is impaired. Someone with a learning difficulty may not be able to handle all their own affairs but, nevertheless, be able to deal with certain things and/or indicate to a sufficient degree that someone else can do things on their behalf.

Incapable within the meaning of the Act, means incapable of:

acting; or
making decisions; or
communicating decisions; or
understanding decisions; or
retaining the memory of decisions,

in relation to any particular matter, by reason of mental disorder or inability to communicate because of physical disability. Someone will not fall within this solely because of an inability to communicate if that can be made good by using, for example, an interpreter, a member of an advocacy project or equipment to assist with communication.

The Act lays out five general principles that are central to all decisions taken on behalf clients with incapacity. All decisions must:

benefit the client
take account of the client's wishes, if these can be ascertained
take account of the views of relevant others, as far as it is reasonable and practical to do so
restrict the client's freedom as little as possible while still achieving the desired benefit
encourage the client to use existing skills or develop new skills

Limitation of Liability

The Act provides that nobody who is authorised to intervene shall be held liable if they have:

Acted reasonably and in good faith and in accordance with the five general principles.
Failed to act and the failure was reasonable and in good faith and in accordance with the five general principles.

Copies of the Act, the explanatory notes and any regulations can be obtained from:

Stationery Office Bookshop
71 Lothian Road
EDINBURGH
EH3 9AZ
Tel: 0870 606 5566
www.scotland-legislation.hmso.gov.uk/

Copies of the codes of practice that accompany the Act can be obtained from:

Scottish Executive Justice Department
Civil Law Division
Floor 2 West (Rear)
St. Andrew's House
Regent Road
EDINBURGH
EH1 3DG
Tel: 0131 244 2193

Alternatively, codes of practice can be downloaded from the following website:
www.scotland.gov.uk/justice/incapacity/