Jurisdiction(s):
United Kingdom

Key definition

Incapacity definition

What does Incapacity mean? In legal practice, incapacity refers to illness or disability—physical or mental—that prevents an employee or pension scheme member from carrying out their job. In pensions, the term is usually defined in the scheme rules and varies widely: schemes may require permanent or long-term incapacity, apply “own occupation” or “any suitable occupation” tests, specify the medical evidence needed, and allocate decision-making to trustees, employers or insurers. It commonly determines eligibility for ill‑health early retirement or insured benefits. In employment law, incapacity engages capability procedures and the fairness of dismissal (for example, under the Employment Rights Act 1996, and in Northern Ireland the...

Adults with Incapacity (Scotland) Act 2000: Practice Note on Principles, Powers of Attorney, Guardianship, Intervention Orders, Access to Funds, Residents' Funds, OPG/MWCS Roles, Medical Treatment and Research, and Reforms

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Practice notes

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Practice Note

On 31 January 2018, the Scottish Government opened a consultation on potential reform of the . This was followed by the Scottish Mental Health Law Review, issued in September 2022. In July 2024, the Scottish Government released proposals for an Adults with Incapacity Amendment Act (see here), which remain out for consultation. It is also consulting on a draft Learning Disabilities, Autism and Neurodivergence Bill (see: here). The Scottish Government has signalled that broader reform of the Adults with Incapacity regime will be explored within a Work Programme running to 2030. No fresh legislation is anticipated before the Scottish Parliament is dissolved in May 2026. This Practice Note considers the (AI(S)A 2000), the statute that sets the framework for safeguarding welfare and managing finances for people in Scotland aged over 16 who lack capacity due to mental illness, learning Disability or a related condition, or an inability to communicate. Incapacity means being unable to act, make choices, communicate, or understand such choices. It can also extend to situations where there is difficulty retaining the memory of decisions...

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Dorothy Kellas

Gilson Gray

Dorothy is the Partner who heads up Gilson Gray’s East Lothian office, based in North Berwick. She advises individuals and families on a wide range of legal issues, in particular relating to the protection of assets through planning. She can help with issues relating to the preparation of Wills, financial planning strategies, property issues and administration of estates. Dorothy has a particular interest in later life issues and is a member of Solicitors for the Elderly. Coming from a broad background of legal experience Dorothy can bring experience of property related issues to her general advice. She has co-written a book on the property aspects of cohabitation in Scotland. ...

David Cobb

AM Advocates

David has practised as an Advocate and Legal Author since 1997, following a lengthy career in Local Government. In the course of developing a mixed Practice, David has established recognition and expertise in the fields of Mental Health, Mental Capacity and Human Rights Law. He has been instructed in cases in the Court of Session, High Court and Sheriff Court, including Judicial Review and Guardianship matters. Recently, he appeared in an Inner House case concerning the capacity of a Patient to instruct a DNACPR Notice. He has also initiated Litigation under the Equality Act 2010 concerning the lengthy mistreatment of a University Student throughout his Studies.David has had several written works published, including the commentary on the Mental Health (Care and Treatment) (Scotland) Act 2003, the Scottish Human Rights Service, and most recently, “A Practical Guide to the Sheriff Court and Protecting Vulnerable Adults in...

Web page updated on 21/05/2026

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