Adults with Incapacity Amendment Act: consultation

The Adults with Incapacity Act (AWI Act) presently states that there are some things that a guardian or an attorney may not do. They are very limited lists of powers and are identical for guardians and attorneys. There is no equivalent list for interveners.

At the moment the following powers are excluded from guardians and attorneys in the AWI Act: (s.16(6) and s.64(2))

• place the adult in a hospital for the treatment of mental disorder against their will
• consent on behalf of the adult to any form of treatment in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2)
• make, on behalf of the adult, a request under section 4(1) of the Anatomy Act 1984 (c. 14)
• give, on behalf of the adult, an authorisation under, or by virtue of, section 6(1), 16F(1)(a),17, 29(1) or 42(1) of the Human Tissue)Scotland) Act 2006 (asp 4)
• withdraw an authorisation, on behalf of the adult, by virtue of section 6A(1) of that Act
• make, on behalf of the adult, an opt-out declaration by virtue of section 6B(1) of that Act
• withdraw an opt-out declaration, on behalf of the adult, by virtue of section 6C(1) of that Act
• make, on behalf of the adult, a nomination under section 30(1) of that Act

Over the past 20 years in the operation of the AWI Act, it has become clear that it would be helpful to add to this list of exclusions to clarify the roles and responsibilities of guardians and attorneys.