FB, Re Incapacity Application

This is an application brought in terms of section 53(5)(b) of the Adults with Incapacity (Scotland) Act 2000, in which the applicant, who is the son of an adult, now aged 85, and who is now incapable of taking decisions regarding her own financial affairs, as defined in section 1(6) of the said Act, seeks the authority of the Court to authorise him to take certain steps with regard to her affairs.

In what I am sure will become in time the key provision of section 53, namely subsection 9, it is provided that "Anything done under an intervention order shall have the same effect as if done by the adult if he had the capacity to do so". The only limitations on the exercise of that provision, as contained in sections 48(2) and 64(2) do not apply here and can therefore be ignored for present purposes.

As Mr Ward states, therefore, and I respectfully agree with him and adopt his reasoning, this provision is likely to be ground-breaking. In the course of the calendar year of 2004, I conducted 114 hearings on Guardianship and Intervention Orders, and by 10 May 2005, I had already conducted another 58. Most of these were for Guardianship Orders, but there were a number of Intervention Orders sought, and granted, in situations where, e.g. some conveyancing or executory business had been commenced but not completed at the stage when the adult ceased to have the capacity to conclude it.

Broadly speaking, the adults whose cases have come before the court can be grouped into 3 categories; firstly, and by far the most numerous, are those adults, often quite elderly, who are suffering from Alzheimer's Disease or some other form of dementia; secondly, there is a group of persons, often quite young, who were born with some form of learning difficulty, and where there may also be a physical incapacity also; and thirdly there is a group of persons, of all ages, who have suffered some traumatic brain injury which has led to incapacity.

Again, there have been cases where the spouse of the adult has died recently, and that person's will named the adult as executor, but unfortunately, the adult has now lost the capacity to enter into the office and give instructions to discharge it. In that situation, applications have been brought forward in order to authorise the completion of the executory business in such a way as to order properly the affairs of the deceased spouse, and then make proper regulation of the adult's own affairs possible.