During our lives we are all likely to be affected by a lack of capacity to make decisions, either personally, or because a client or someone close to us is unable to make decisions for themselves.  Over the past few years, there have been huge changes to the law in relation to incapable adults.  The most recent changes are introduced by the Mental Capacity Act 2005, most of which comes into force in England and Wales on 1 October 2007.  It is therefore an opportune time to consider the impact of this Act and the equivalent Scottish Acts.

The revolutionary Adults with Incapacity (Scotland) Act 2000 was the fourth Act passed by the Scottish Parliament and has recently been subject to a lengthy review.  As a result, the Adult Support and Protection (Scotland) Act 2007 will make a number of significant (although generally procedural) changes to the 2000 Act.

In both jurisdictions, there is an important distinction to be drawn between what can be done while an Adult retains capacity (anticipatory measures) and the options available after someone has lost capacity to manage some aspect of their affairs (responsive measures). 

The primary anticipatory measure is a Power of Attorney, a deed in which an Adult appoints other people to deal with certain aspects of their affairs.  New powers of attorney must be registered with the Office of the Public Guardian to be effective and an Attorney only has the powers specifically granted to them in the deed.  If acting personally under a Power of Attorney or instructed by an Attorney, it is important to check the deed to ensure that it provides sufficient powers and that it has been registered.

In Scotland, Attorneys can either be 'Continuing' or 'Welfare'.  Welfare powers (e.g. making accommodation decisions) may only ever be exercised if the Adult is deemed to be incapable of making decisions in relation to their personal welfare.  In contrast, the financial powers of a Continuing Attorney (unless the deed specifies otherwise) may be exercised once the deed has been registered even if the Granter retains capacity.  This allows an Attorney to assist an elderly Adult who may not yet have lost capacity.

Prior to the 2005 Act, the relevant English deed was an Enduring Power of Attorney ("EPA") but this could only be used to grant powers in relation to managing property or finances.  From October, the 2005 Act replaced EPAs with Lasting Powers of Attorney ('LPAs'), which will allow an Attorney to be appointed in relation to financial, and/or welfare matters.  An LPA must be registered to be effective unlike an EPA which only had to be registered if the granter lost capacity.

If a person has lost capacity and has not appointed an Attorney, no-one has inherent authority to deal with their affairs (although doctors have certain powers in relation to healthcare matters).  In Scotland, the primary responsive measure is an application to a Sheriff Court for a Guardianship or Intervention Order.  These enable the courts, in appropriate circumstances, to authorise someone to deal with an incapable Adult's affairs (e.g. to sell the Adult's house to meet care home costs). 

From October 2007, the English equivalent of Guardians are Deputies, who will be able to take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection.  It will no longer be possible to be appointed as a Receiver.

Throughout Great Britain, the key message is Be Prepared.  It is straightforward to put in place a Power of Attorney 'just in case'.  However, if no Attorney is appointed, the court application process of a Guardianship/Intervention Order or appointment of a Deputy is complex and time consuming. 

Andrew Paterson is a solicitor specialising in all aspects of private client law with UK law firm Shepherd and Wedderburn.
0131-473 5744