Adults with Incapacity Amendment Act: consultation

Section 3(3) of the Adults with Incapacity Act (AWI Act) currently provides for the sheriff, on application by any person claiming an interest in the property, financial affairs or personal welfare of an adult to give directions to any person exercising functions conferred by the AWI Act or functions of a like nature conferred by the law of any country.

This is an incredibly useful power, but we consider it needs expanding in two ways.

First we think that the sheriff should be able to give directions to people formerly exercising functions, so that a former attorney or guardian for example could be ordered to provide information. This will ensure greater transparency between individuals currently and formerly exercising functions under the AWI Act and will provide further protection for the adult.

Second, we think that the power under section 3(3) should be extended to a discretionary power to give directions to anyone where that is appropriate for the proper operation of provisions of the AWI Act.

This would provide a route for attorneys and guardians to, for example, request the sheriff to direct a pension provider to transfer payments into an appropriate account. The inability to do something like this at present can cause a great deal of distress for persons acting under the AWI Act and can often mean the adult is not receiving the funds they should.