Adults with Incapacity Amendment Act: consultation
Appointment of safeguarders/curators ad litem
Safeguarders are appointed by the court to represent and safeguard the best interests of adults with incapacity in legal proceedings. Their primary responsibility is to ensure that the views, wishes and welfare of the adults they represent are fully considered and represented within the legal process.
Curators ad litem are appointed by the court to provide independent representation for individuals who are unable to represent themselves effectively in legal proceedings. They serve as a vital link between the court, their clients, and relevant stakeholders such as mental health officers, facilitating communication and ensuring that decisions are made in the best interests of those they represent.
There is a gap in terms of public awareness and understanding of the roles of safeguarders and curators ad litem. This can lead to misconceptions and challenges in implementing effective measures for both roles.
We agree with the recommendations set out in in the Scottish Mental Health Law Review for both safeguarders and curators ad litem. There is a need for consistency of approach and transparency of appointment to both roles, and the tasks they are expected to complete.
There is a distinction to be drawn between the appointment of safeguarders and curators. Safeguarders for adults are only used in Adults with Incapacity (AWI) cases in the sheriff court where as curators ad litem can be used in other proceedings.
For safeguarders, we propose granting Ministers the power to establish regulations for a scheme that includes the appointment, training and payment of safeguarders. This aims to ensure consistent quality in reporting and a better understanding of the safeguarder’s role and responsibilities.
For curators, we propose mandatory training for AWI cases and a requirement to report on actions taken to determine the will and preferences of the adults they work with. This statutory duty for curators ad litem will be outlined in forthcoming regulations that will be subject to consultation.