Section 2: Appointment of person to act on behalf of individual
11.Section 2(1) to (3) modifies the 2018 Act, repealing section 58 and inserting new subsections (5A), (5B) and (5C) after section 85A(5).
12.New section 85(5A) provides that the Scottish Ministers must consider whether to make or terminate an appointment in respect of a child, if asked to by: the child; anyone who has authority to act for the child; anyone who lives with and has care of the child; or anyone who has an interest in the child’s welfare or financial affairs.
13.Subsections (5B) and (5C) of new section 85A provide that, in deciding whether to make or terminate an appointment in respect of a child, the Scottish Ministers must, in so far as practicable, take into account the views of: the child; anyone who is a relevant person in relation to the child within the meaning of section 200 of the Children’s Hearings (Scotland) Act 2011; and anyone else who appears to have an interest in the welfare or financial affairs of the child.
14.Section 2(4) inserts new section 85B (Appointment of person to act on behalf of the individual) after section 85A.
15.New section 85B restates the circumstances in which the Scottish Ministers could already make an appointment under section 58 of the 2018 Act in respect of adults regarded as incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000 and in respect of deceased individuals, and sets out a new circumstance in which they can make an appointment in respect of an adult. It also makes provision in relation to termination of appointments under that section, and introduces new powers for certain persons to request that Ministers consider whether to make or terminate an appointment in respect of an adult.
16.Subsections (1) and (2) of new section 85B give Scottish Ministers the power in certain circumstances to appoint a person over the age of 16 years to act on behalf of an individual in connection with the determination of the individual’s entitlement to assistance under section 24 or regulations made under section 79 of the 2018 Act and, where appropriate, to receive that assistance on the individual’s behalf.
17.New section 85B(3) sets out the circumstances in which an appointment may be made under subsection (1) of that section. Those are where the individual is an adult and the conditions in subsection (4) are met, or where it appears to Ministers that subsection (6) or (7) applies.
18.The conditions in subsection (4) allow an appointment to be made in respect of an adult where the adult agrees to the appointment, and an appropriate person certifies that, in their opinion:
the adult is not incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000;
the adult understands the effect of the appointment;
the adult has not been subject to any undue influence in agreeing to the appointment;
the proposed appointee is suitable to act on the adult’s behalf.
19.New section 85B(5) requires the Scottish Ministers to define who is an ‘appropriate person’ to certify an appointment for an adult with capacity in regulations.
20.New section 85B(6) restates section 58(3)(a)and (b) of the 2018 Act to allow for the Scottish Ministers to make an appointment where the individual is deceased and there is no executor.
21.Subsections (7) and (8) of new section 85B restate section 58(4) of the 2018 Act to allow for the Scottish Ministers to appoint someone over the age of 16 to act on an individual’s behalf where the individual is incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000. It specifies that this can only happen where there is no other guardian acting or appointed under that Act, the individual’s estate is not being administered by a judicial factor, and there is no other person who has authority to act on the individual’s behalf that is willing to do so.
22.Subsections (9) and (10) of new section 85B provide that an appointee acting for an adult or deceased individual can do anything the individual or other person with authority to act on the individual’s behalf could do in relation to the determination of the individual’s entitlement to assistance. The Scottish Ministers may ask the appointee for information, and must give the appointee the same information they would otherwise be required to give the individual, had the individual been acting for themselves.
23.New section 85B(11) allows for the Scottish Ministers to terminate an appointment for an adult or deceased individual any time.
24.New section 85B(12) to (16) makes provision in relation to termination of appointments, and to allow for certain persons to, in effect, request that Scottish Ministers review an appointment decision.
25.New section 85B(12) requires that, where an appointment has been made with the agreement of an adult with capacity, the Scottish Ministers must terminate it if that agreement is withdrawn. They must also consider whether to terminate such an appointment if they are asked to do so by anyone who appears to have an interest in the adult’s welfare or financial affairs.
26.New section 85B(13) requires that the Scottish Ministers consider whether to terminate an appointment in respect of a deceased individual when asked to do so by anyone with an interest in the individual’s financial affairs.
27.New section 85B(14) requires the Scottish Ministers to consider whether to make or terminate an appointment for an adult regarded as lacking capacity when asked to by the individual themselves, by anyone who has authority to act for the individual or by anyone who has an interest in the individual’s welfare or financial affairs.
28.Subsections (15) and (16) of section 85B require that, when deciding whether to make or terminate an appointment in respect of an adult who is regarded as lacking capacity, the Scottish Ministers must, in so far as practicable, have regard to the wishes and feelings of that individual, and anyone else with an interest in the individual’s welfare or financial affairs.
29.Section 2(5) inserts new section 85C (Guidelines for decisions about appointees) after section 85B.
30.New section 85C(1) provides that the Scottish Ministers must prepare guidelines governing their decisions in connection with appointments under sections 85A and 85B, may revise the guidelines, and must make them publicly available.
31.New section 85C(2) specifies what must be set out in those guidelines:
how the Scottish Ministers will determine that a person is suitable for appointment;
how a request for an appointment or termination of an appointment may be made and how it will be handled;
the process by which those with an interest in the making or termination of an appointment will be involved in those decisions;
how the Scottish Ministers will review appointments periodically, at least every five years, and the process for that;
how concerns about way an appointee is performing that role may be raised and how they will be handled.
32.New section 85C(3) places a duty on the Scottish Ministers to have regard to a number of considerations when drafting the guidelines referred to in subsection (1).
33.Those considerations are:
that an appointment for a living individual should be made only if it appears to be of benefit to the individual, and that benefit cannot reasonably be achieved in another way;
an appointment should last for only as long as it continues to secure that benefit;
that, where reasonably practicable, before decisions are made, those that may be affected by them should be consulted, and their views taken into account. Where the individual is regarded as lacking capacity, their wishes and feelings must be also be considered;
that decisions should be made on the basis of good information;
that decision-making processes should, so far as reasonably practicable, take account of the circumstances of individual cases;
that persons who may be affected by decisions are given adequate information and support in relation to their involvement in the decision-making process.
34.New section 85C(4) requires the Scottish Ministers to consult with specified persons and bodies in preparing or revising the guidelines.
35.Section 2(6) inserts new section 85D (Right to apply to First-tier Tribunal for review of certain decisions) after section 85C.
36.Subsections (1) to (4) of new section 85D provide that any person who is entitled to request that the Scottish Ministers make, or consider termination of, an appointment under section 85A(5A) or 85B(12)(b), (13) or (14) may make an application to the First-tier Tribunal to review a decision about an appointment that the Scottish Ministers have made in pursuance of such a request. The application to the First-tier Tribunal must be made within 31 days of the date of the decision. This includes decisions not to make or terminate an appointment, as well as decisions to make or terminate an appointment. A late application may be made with good reason and with the First-tier Tribunal’s permission, but not later than one year from the date of the decision.
37.Subsections (5) to (7) of new section 85D provide that, on reviewing a decision of the Scottish Ministers in respect of an appointment, the First-tier Tribunal can uphold or set aside the decision. If it sets it aside it may reach its own decision or order the Scottish Ministers to make the decision afresh. The Tribunal may make its own findings in fact and give such directions as it considers appropriate.
38.Subsections (9) and (10) of new section 85D provide that the First-tier Tribunal’s decision is final and may not be reviewed under section 43 of the Tribunals (Scotland) Act 2014 or appealed against under section 46 of that Act.
39.Section 2(7) inserts new section 85E (Guidance for appointees) after section 85D.
40.New section 85E(1) places a duty on any person appointed to act for a child under section 85A, or for an adult or deceased individual under section 85B, to have regard to any guidance that the Scottish Ministers issue about how the person should carry out that role. The Scottish Ministers are required by new section 85E(2) to make any guidance issued publicly available.
41.Section 2(8) provides that regulations under section 85B(5) that define who is an ‘appropriate person’ to certify an appointment for an adult with capacity will be subject to the negative procedure.
