79C3C34C52B45572883A05D425EB0F82
Adults with Incapacity (Scotland) Act 2000, Section 51
https://www.legislation.gov.uk/asp/2000/4/pdfs/asp_20000004_en.pdf
http://leaux.net/URLS/ConvertAPI Text Files/2594CC9F27CAFDF502ACDA3BB0358223.en.txt
Examining the file media/Synopses/2594CC9F27CAFDF502ACDA3BB0358223.html:
This file was generated: 2020-12-01 07:22:14
| Indicators in focus are typically shown highlighted in yellow; |
Peer Indicators (that share the same Vulnerability association) are shown highlighted in pink; |
"Outside" Indicators (those that do NOT share the same Vulnerability association) are shown highlighted in green; |
Trigger Words/Phrases are shown highlighted in gray. |
Link to Orphaned Trigger Words (Appendix (Indicator List, Indicator Peers, Trigger Words, Type/Vulnerability/Indicator Overlay)
Applicable Type / Vulnerability / Indicator Overlay for this Input
Political / Refugee Status
Searching for indicator refugee:
(return to top)
p.000063: authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as
p.000063: would, under this Act, have functions in relation to the adult, have agreed to the request.
p.000063:
p.000063: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000065: 65
p.000065: Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (3) As from the ratification date, the provisions of the Convention shall apply to the exercise of
p.000065: jurisdiction under this schedule where the adult—
p.000065: (a) is habitually resident in a Contracting State other than the United Kingdom; or
p.000065: (b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a
p.000065: Contracting State.
p.000065: (4) As from the ratification date, any application made to a Scottish judicial or
p.000065: administrative authority under this Act which—
p.000065: (a) relates to an adult who is not habitually resident in Scotland; and
p.000065: (b) does not require to be determined as a matter of urgency,
p.000065: shall be accompanied by information as to which State the adult habitually resides in and as to any other
p.000065: application relating to the adult which has been dealt with or is being made, or proceedings so relating which
p.000065: have been or are being brought, in any Contracting State other than the United Kingdom.
p.000065: (5) For the purposes of this paragraph, an adult—
p.000065: (a) whose habitual residence cannot be ascertained; or
p.000065: (b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual
p.000065: residence,
p.000065: shall be taken to be habitually resident in the State which he is in.
p.000065: Appropriate sheriff
p.000065: 2 (1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose
p.000065: sheriffdom—
p.000065: (a) in relation to a case falling within paragraph 1(1)(a), the adult is habitually resident;
p.000065: (b) in relation to a case falling within paragraph 1(1)(b), the property is located;
p.000065: (c) in relation to a case falling within paragraph 1(1)(c), the adult or property belonging to the adult
p.000065: is present;
p.000065: (d) in relation to a case falling within paragraph 1(1)(d), the adult is present.
p.000065: (2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship
p.000065: order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial
p.000065: or administrative authorities, jurisdiction; and—
p.000065: (a) no other court or authority has jurisdiction; or
p.000065: (b) another court or authority has jurisdiction but—
p.000065: (i) it would be unreasonable to expect an applicant to invoke it; or
p.000065: (ii) that court or authority has declined to exercise it.
...
Political / criminal
Searching for indicator criminal:
(return to top)
p.000001: 68 Reimbursement and remuneration of guardian
p.000001: 69 Forfeiture of guardian’s remuneration
p.000001: 70 Non-compliance with decisions of guardian with welfare powers
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
...
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
p.000055: welfare of an adult to ill-treat or wilfully neglect that adult.
p.000055: (2) A person guilty of an offence under subsection (1) shall be liable—
p.000055: (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory
p.000055: maximum or both;
p.000055: (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
p.000055:
p.000055: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000055: (1) Parts 1, 5, 6 and 7 shall apply to a guardian appointed under section 57(2)(c) or section 58(1)
p.000055: of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Act”) as they apply to a guardian with powers
p.000055: relating to the personal welfare of an adult appointed under Part 6; and accordingly the 1995 Act shall be
p.000055: amended as follows.
p.000055: (2) After section 58 there shall be inserted—
p.000055: “58A Application of Adults with Incapacity (Scotland) Act 2000
p.000055: (1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with
p.000055: Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—
p.000055: (a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this
p.000055: section referred to as a “guardianship order”) whether appointed before or after the coming into force of these
p.000055: provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed
p.000055: under section 58 of that Act;
p.000055: (b) to a person authorised under an intervention order under section 60A of this Act as they apply to a person so
p.000055: authorised under section 53 of that Act.
p.000055: (2) In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers
p.000055: under section 64(11) of the 2000 Act and—
p.000055: (a) shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person;
p.000055: (b) may appoint a joint guardian;
p.000055: (c) may appoint a substitute guardian;
...
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
p.000077: curator” there shall be substituted “or person entitled to act as the legal representative of a person
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
p.000077:
p.000077: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000079: 79
p.000079: Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) in subsection (2)(c) for first “person” there shall be substituted “person’s personal welfare”;
p.000079: (b) in subsection (4) after “58(1),” there shall be inserted “58(1A),”;
p.000079: (c) at the end there shall be added—
p.000079: “(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this
p.000079: section.”.
p.000079: (2) In section 58 of that Act—
p.000079: (a) for subsection (1) there shall be substituted—
p.000079: “(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an
p.000079: offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court—
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
p.000079: character and antecedents of the offender and to the other available methods of dealing with him, that the
p.000079: most suitable method of disposing of the case is by means of an order under this subsection,
p.000079: the court may, subject to subsection (2) below, by order authorise his admission to and detention
...
p.000083: local authority concerned”, “or subject to guardianship”, “or guardianship” in both places,
p.000083: “or his reception into guardianship”; in subsection (4), “or, as the case may be, the local authority
p.000083: concerned in relation to a patient subject to guardianship as aforesaid”.
p.000083:
p.000083: In section 112, “or his reception into guardianship”.
p.000083:
p.000083: 84 Adults with Incapacity (Scotland) Act 2000
p.000083: (asp 4) Schedule 6—Repeals
p.000083:
p.000083: Enactment Extent of Repeal
p.000083:
p.000083: In section 113(1), “or for reception into guardianship”. In section 119, “guardianship under this Act”.
p.000083: In section 121 in subsection (1)(b), “or subject to guardianship”, “or 44”; in subsection (2),
p.000083: “or subject to guardianship”, “or 44”, “and subsection (2) of the said section 44”; in subsection (6),
p.000083: the words from “(in the case of” where first occurring to “guardianship)”, “or section 44”, “respectively”,
p.000083: “or the said section 44 (as the case may be)”.
p.000083:
p.000083: In section 125 in subsection (4), “or subject to guardianship”; in subsection (5), “or received, or
p.000083: liable to be received, into guardianship”, “(other than under Part V thereof)”, “or received or liable to be
p.000083: received into guardianship”.
p.000083:
p.000083:
p.000083: Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40)
p.000083:
p.000083: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000083: Section 71.
p.000083:
p.000083: In section 59(2), “or section 39”.
p.000083:
p.000083: In section 61(1), “or section 39”.
p.000083:
p.000083: In section 230(1), “or 39”.
p.000083:
...
Political / displaced
Searching for indicator displaced:
(return to top)
p.000063: would, under this Act, have functions in relation to the adult, have agreed to the request.
p.000063:
p.000063: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000065: 65
p.000065: Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (3) As from the ratification date, the provisions of the Convention shall apply to the exercise of
p.000065: jurisdiction under this schedule where the adult—
p.000065: (a) is habitually resident in a Contracting State other than the United Kingdom; or
p.000065: (b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a
p.000065: Contracting State.
p.000065: (4) As from the ratification date, any application made to a Scottish judicial or
p.000065: administrative authority under this Act which—
p.000065: (a) relates to an adult who is not habitually resident in Scotland; and
p.000065: (b) does not require to be determined as a matter of urgency,
p.000065: shall be accompanied by information as to which State the adult habitually resides in and as to any other
p.000065: application relating to the adult which has been dealt with or is being made, or proceedings so relating which
p.000065: have been or are being brought, in any Contracting State other than the United Kingdom.
p.000065: (5) For the purposes of this paragraph, an adult—
p.000065: (a) whose habitual residence cannot be ascertained; or
p.000065: (b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual
p.000065: residence,
p.000065: shall be taken to be habitually resident in the State which he is in.
p.000065: Appropriate sheriff
p.000065: 2 (1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose
p.000065: sheriffdom—
p.000065: (a) in relation to a case falling within paragraph 1(1)(a), the adult is habitually resident;
p.000065: (b) in relation to a case falling within paragraph 1(1)(b), the property is located;
p.000065: (c) in relation to a case falling within paragraph 1(1)(c), the adult or property belonging to the adult
p.000065: is present;
p.000065: (d) in relation to a case falling within paragraph 1(1)(d), the adult is present.
p.000065: (2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship
p.000065: order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial
p.000065: or administrative authorities, jurisdiction; and—
p.000065: (a) no other court or authority has jurisdiction; or
p.000065: (b) another court or authority has jurisdiction but—
p.000065: (i) it would be unreasonable to expect an applicant to invoke it; or
p.000065: (ii) that court or authority has declined to exercise it.
p.000065: (3) Notwithstanding that any other judicial or administrative authority has jurisdiction under sub-paragraph (1)(a)
...
Political / person in detention center
Searching for indicator detained:
(return to top)
p.000021: 1938 Act;
p.000021: (d) an establishment in respect of which there is registration under section 61B, 62 or 63 of the Social Work
p.000021: (Scotland) Act 1968 (c.49) (“the 1968 Act”);
p.000021: (e) an establishment in relation to which, but for the exception provided by section 61(1A)(a)
p.000021: of the 1968 Act, there would require to be registration under section 62 or 63 of the 1968 Act;
p.000021: (f) a private hospital registered under Part IV of the Mental Health (Scotland) Act 1984 (c.36) (“the
p.000021: 1984 Act”);
p.000021: (g) a State hospital.
p.000021: (2) In this Part establishments mentioned in paragraph (b), (ca), (cb), (d) or (f) of subsection
p.000021: (1) are referred to as “registered establishments”, all other establishments mentioned in subsection (1) are
p.000021: referred to as “unregistered establishments”, and registered and unregistered establishments together are
p.000021: referred to as “authorised establishments”.
p.000021: (3) This Part shall not apply to a registered establishment where notice in writing is given to the supervisory
p.000021: body by—
p.000021: (a) the managers of the registered establishment; or
p.000021: (b) an applicant for registration of an establishment, that it shall not apply.
p.000021: (4) The Scottish Ministers may by regulations amend the list of authorised establishments set out in subsection
p.000021: (1).
p.000021: (5) In this Part, “the managers” has the meaning set out in schedule 1; and “resident” in relation
p.000021: to an authorised establishment means an adult whose main residence for the time being is the authorised
p.000021: establishment or who is liable to be detained there under the 1984 Act.
p.000021:
p.000021: 36 Registration for purposes of managing residents’ finances
p.000021: After section 61A of the Social Work (Scotland) Act 1968 (c.49) there shall be inserted—
p.000021:
p.000021: 22 Adults with Incapacity (Scotland) Act 2000
p.000021: (asp 4) Part 4—Management of residents’ finances
p.000021:
p.000021: “61B Registration for purpose of managing residents’ finances
p.000021: (1) Any residential or other establishment in respect of which there is no requirement to
p.000021: register under section 61 of this Act may apply for registration under this Part of this Act for the purposes
p.000021: only of Part 4 (Management of Residents’ Finances) of the Adults with Incapacity (Scotland) Act 2000 (asp
p.000021: 4).
p.000021: (2) Where an application for registration to which subsection (1) applies is granted, the
p.000021: establishment shall be entered in the register kept for the purposes of section 61(2) above by the local
p.000021: authority or, as the case may be, the Scottish Ministers.
p.000021: (3) The provisions of this Part of this Act shall apply to establishments to which this section applies subject to
p.000021: the following—
p.000021: (a) section 61(2) and (3) shall not apply;
p.000021: (b) section 62(8) and (8A) shall not apply;
p.000021: (c) section 65 shall not apply;
p.000021: (d) the provisions of section 67(1) shall apply only where the person carrying on the establishment is
p.000021: registered.”.
p.000021:
p.000021: 37 Residents whose affairs may be managed
...
p.000027: in regulations made under section 48.
p.000027:
p.000027: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000029: 29
p.000029: Part 5—Medical treatment and research
p.000029:
p.000029: (9) Subject to subsection (10), where any question as to the authority of any person to provide
p.000029: medical treatment in pursuance of subsection (2)—
p.000029: (a) is the subject of proceedings in any court (other than for the purposes of any application to the
p.000029: court made under regulations made under section 48); and
p.000029: (b) has not been determined,
p.000029: medical treatment authorised by subsection (2) shall not be given unless it is authorised by any other enactment or
p.000029: rule of law for the preservation of the life of the adult or the prevention of serious deterioration in his medical
p.000029: condition.
p.000029: (10) Nothing in subsection (9) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 48 Exceptions to authority to treat
p.000029: (1) The authority conferred by section 47(2) does not extend to the giving of any of the forms of
p.000029: treatment to which Part X of the 1984 Act applies to a patient to whom that Part applies (which Part authorises
p.000029: certain treatments for mental disorder for certain patients detained under that Act).
p.000029: (2) The Scottish Ministers may by regulations specify medical treatment, or a class or classes of
p.000029: medical treatment, in relation to which the authority conferred by section 47(2) shall not apply and
p.000029: make provision about the medical treatment, or a class or classes of medical treatment, in relation to which
p.000029: that authority does apply.
p.000029: (3) Regulations made under subsection (2) may provide for the circumstances in which the specified medical
p.000029: treatment or specified class or classes of medical treatment may be carried out.
p.000029:
p.000029: 49 Medical treatment where there is an application for intervention or guardianship order
p.000029: (1) Section 47(2) shall not apply if, to the knowledge of the medical practitioner primarily responsible for the
p.000029: medical treatment of the adult, an application for an intervention order or a guardianship order with power in
p.000029: relation to any medical treatment referred to in that subsection has been made to the sheriff and has not been
p.000029: determined.
p.000029: (2) Until the application has been finally determined, medical treatment authorised by section 47(2)
p.000029: shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life of
p.000029: the adult or the prevention of serious deterioration in his medical condition.
p.000029: (3) Nothing in subsection (2) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 50 Medical treatment where guardian etc. has been appointed
...
Political / political affiliation
Searching for indicator party:
(return to top)
p.000005:
p.000005: 7 The Public Guardian: further provision
p.000005: (1) The Scottish Ministers may prescribe—
p.000005: (a) the form and content of the registers to be established and maintained under section 6(2)(b) and the
p.000005: manner and medium in which they are to be established and maintained;
p.000005: (b) the form and content of any certificate which the Public Guardian is empowered to issue under this Act;
p.000005: (c) the forms and procedure for the purposes of any application required or permitted to be made under this Act to
p.000005: the Public Guardian in relation to any matter;
p.000005: (d) the evidence which the Public Guardian shall take into account when deciding under section 11(2)
p.000005: whether to dispense with intimation or notification to the adult.
p.000005: (2) The Public Guardian may charge the prescribed fee for anything done by him in connection with any
p.000005: of his functions under this Act and he shall not be obliged to act until such fee is paid.
p.000005: (3) Any certificate which the Public Guardian issues under this Act shall, for the purposes of any proceedings, be
p.000005: conclusive evidence of the matters contained in it.
p.000005:
p.000005: Expenses in court proceedings
p.000005: 8 Expenses in court proceedings
p.000005: (1) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of protecting the interests of an adult, the court may make an award of expenses against the adult or against
p.000005: any person whose actings have resulted in the proceedings.
p.000005: (2) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of representing the public interest, the court may make an award of expenses against any person whose
p.000005: actings have resulted in the proceedings or on whose part there has been unreasonable conduct in relation
p.000005: to the proceedings.
p.000005:
p.000005: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000007: 7
p.000007: Part 1—General
p.000007:
p.000007: The Mental Welfare Commission
p.000007: 9 Functions of the Mental Welfare Commission
p.000007: (1) Without prejudice to their functions under the 1984 Act, the Mental Welfare Commission
p.000007: shall have the following general functions under this Act in relation to any adult to whom this Act applies by
p.000007: reason of, or by reasons which include, mental disorder—
p.000007: (a) to exercise protective functions in respect of the adult if the adult is the subject of an intervention or
p.000007: guardianship order, in so far as the order relates to the personal welfare of the adult;
p.000007: (b) to visit the adult as often as they think appropriate and bring to the attention of the Health Board for the area
p.000007: in which the adult resides, or the local authority, or any other body any matter relating to the personal
p.000007: welfare of the adult which they consider ought to be brought to their attention;
...
p.000013: on its becoming effective the Public Guardian shall enter prescribed particulars in the register maintained
p.000013: by him under section 6(2)(b)(i) or (ii) as the case may be.
p.000013:
p.000013: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000015: 15
p.000015: Part 3—Accounts and funds
p.000015:
p.000015: (3) Where the resignation is of a welfare attorney, the Public Guardian shall notify the local authority and (in
p.000015: a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder) the
p.000015: Mental Welfare Commission.
p.000015: (4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a
p.000015: substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if
p.000015: evidence that—
p.000015: (a) the remaining joint attorney is willing to continue to act; or
p.000015: (b) the substitute attorney is willing to act, accompanies the notice.
p.000015:
p.000015: 24 Termination of continuing or welfare power of attorney
p.000015: (1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall,
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
...
p.000033: require the person authorised under the order to find caution.
p.000033: (8) The sheriff may, on an application by—
p.000033: (a) the person authorised under the intervention order; or
p.000033: (b) the adult; or
p.000033: (c) any person claiming an interest in the property, financial affairs or personal welfare of the adult,
p.000033: make an order varying the terms of, or recalling, the intervention order or any other order made for the
p.000033: purposes of the intervention order.
p.000033: (9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the
p.000033: capacity to do so.
p.000033: (10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor
p.000033: containing the order to the Public Guardian who shall—
p.000033: (a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be
p.000033: prescribed; and
p.000033: (b) notify the adult, the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000033: which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors
p.000033: which include it) the Mental Welfare Commission.
p.000033: (11) A transaction for value between a person authorised under an intervention order, purporting to act as
p.000033: such, and a third party acting in good faith shall not be invalid on the ground only that—
p.000033: (a) the person acted outwith the scope of his authority;
p.000033:
p.000033: 34 Adults with Incapacity (Scotland) Act 2000
p.000033: (asp 4) Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: (b) the person failed to observe any requirement, whether substantive or procedural, imposed by or under this Act or
p.000033: by the sheriff or by the Public Guardian; or
p.000033: (c) there was any irregularity whether substantive or procedural in the authorisation of the person.
p.000033: (12) A person authorised under an intervention order may recover from the estate of the adult the amount of such
p.000033: reasonable outlays as he incurs in doing anything directed or authorised under the order.
p.000033: (13) Where a third party has acquired, in good faith and for value, title to any interest in
p.000033: heritable property from a person authorised under an intervention order that title shall not be challengeable on the
p.000033: ground only—
p.000033: (a) of any irregularity of procedure in the making of the intervention order; or
p.000033: (b) that the person authorised under the intervention order has acted outwith the scope of the authority.
p.000033: (14) Sections 64(2) and 67(3) and (4) shall apply to an intervention order as they apply to a guardianship order and,
p.000033: for this purpose, for any reference to a guardian there shall be substituted a reference to the person authorised under
p.000033: the order.
p.000033:
p.000033: 54 Records: intervention orders
p.000033: A person authorised under an intervention order shall keep records of the exercise of his powers.
p.000033:
p.000033: 55 Notification of change of address
p.000033: After particulars relating to an intervention order are entered in the register under section 53 the
p.000033: person authorised under the intervention order shall notify the Public Guardian—
p.000033: (a) of any change in his address; and
p.000033: (b) of any change in the address of the adult,
p.000033: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000033: 6(2)(b)(v) and notify the local authority and (in a case where the adult’s incapacity is by reason of,
...
p.000039: (b) when satisfied that the additional guardian has found caution if so required, issue a certificate of
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000039: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000039: include it) the Mental Welfare Commission.
p.000039: (6) Joint guardians may, subject to subsection (7), exercise their functions individually, and each guardian shall
p.000039: be liable for any loss or injury caused to the adult arising out of—
p.000039: (a) his own acts or omissions; or
p.000039: (b) his failure to take reasonable steps to ensure that a joint guardian does not breach any duty of care or
p.000039: fiduciary duty owed to the adult,
p.000039: and where more than one such guardian is so liable they shall be liable jointly and severally.
p.000039: (7) A joint guardian shall, before exercising any functions conferred on him, consult the other joint
p.000039: guardians, unless—
p.000039: (a) consultation would be impracticable in the circumstances; or
p.000039: (b) the joint guardians agree that consultation is not necessary.
p.000039: (8) Where joint guardians disagree as to the exercise of their functions, either or both of them may
p.000039: apply to the sheriff for directions under section 3.
p.000039: (9) Where there are joint guardians, a third party in good faith is entitled to rely on the
p.000039: authority to act of any one or more of them.
p.000039:
p.000039: 63 Substitute guardian
p.000039: (1) In any case where an individual is appointed as guardian under section 58 the sheriff may, on an
p.000039: application, appoint to act as guardian in the event of the guardian so appointed becoming unable to
p.000039: act any individual or office holder who could competently be appointed by virtue of section 59.
p.000039: (2) In this Act an individual appointed under section 58 and an individual or office holder appointed under this
p.000039: section are referred to respectively as an “original guardian” and a “substitute guardian”.
p.000039: (3) The appointment of a substitute guardian shall be for the same period as the appointment of the original
p.000039: guardian under section 58(4).
p.000039:
p.000039: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000041: 41
p.000041: Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: (4) An application for appointment as a substitute guardian may be made at the time of the application for the
p.000041: appointment of the original guardian or at any time thereafter.
p.000041: (5) In making an order appointing an individual as substitute guardian with powers relating to the property or
p.000041: financial affairs of the adult the sheriff shall, except where—
p.000041: (a) the individual is unable to find caution; but
p.000041: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed substitute guardian,
...
p.000043: relation to any other matter.
p.000043: (2) Where the guardian has powers relating to the property or financial affairs of the adult, the certificate of
p.000043: appointment issued to him by the Public Guardian shall, subject to the terms of the order appointing him, have the
p.000043: effect of—
p.000043: (a) authorising the guardian to take possession of, manage and deal with any moveable or immoveable estate
p.000043: (wherever situated) of the adult;
p.000043: (b) requiring any payment due to the adult to be made to the guardian,
p.000043: in so far as the estate, payment or matter falls within the scope of the guardian’s authority.
p.000043: (3) A guardian having powers relating to the personal welfare of an adult may exercise these powers in
p.000043: relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
p.000043: (4) The guardian shall be personally liable under any transaction entered into by him—
p.000043: (a) without disclosing that he is acting as guardian of the adult; or
p.000043: (b) which falls outwith the scope of his authority,
p.000043: but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this
p.000043: Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect
p.000043: of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.
p.000043: (5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the
p.000043: transaction that authority had been granted by the guardian under section 64(1)(e), the transaction shall not
p.000043: be void only on the ground that the adult lacked capacity.
p.000043: (6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith
p.000043: shall not be invalid on the ground only that—
p.000043: (a) the guardian acted outwith the scope of his authority; or
p.000043:
p.000043: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000045: 45
p.000045: Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act,
p.000045: or by the sheriff or by the Public Guardian; or
p.000045: (c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
p.000045: (7) In subsections (3) and (4) any reference to a guardian shall include a reference to a guardian
p.000045: (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an
p.000045: adult during his incapacity, if the guardianship is recognised by the law of Scotland.
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
...
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
p.000053: of the person or guardian if he is unaware of the termination or ending of that authority.
p.000053: (4) No title to any interest in heritable property acquired by a third party in good faith and for value from a
p.000053: person authorised under an intervention order or from a guardian having powers relating to the property
p.000053: or financial affairs of the adult shall be challengeable on the grounds only of the termination or
p.000053: coming to an end of the authority of the person or of the guardian.
p.000053: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000053: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000053: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000053:
p.000053: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000053: (1) The Public Guardian shall—
p.000053: (a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by
p.000053: him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the
p.000053: appointment of the guardian was recorded or registered under section 61; or
p.000053: (b) where an adult in respect of whom there was such a guardianship order has died,
p.000053: apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other
p.000053: document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
...
Health / Drug Dependence
Searching for indicator dependence:
(return to top)
p.000055: to the Scottish Ministers to be appropriate.
p.000055:
p.000055: 87 Interpretation
p.000055: (1) In this Act, unless the context otherwise requires—
p.000055:
p.000055: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000057: 57
p.000057: Part 7—Miscellaneous
p.000057:
p.000057: “adult” shall be construed in accordance with section 1;
p.000057: “continuing attorney” shall be construed in accordance with section 15; “guardianship order” shall be construed in
p.000057: accordance with section 58; “incapable” and “incapacity” shall be construed in accordance with section 1; “intervention
p.000057: order” shall be construed in accordance with section 53;
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
p.000057: of that Act;
p.000057: “office holder”, in relation to a guardian, means the chief social work officer of the local authority;
p.000057: “person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public
p.000057: Guardian;
p.000057: “power of attorney” includes a factory and commission;
p.000057: “prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public
p.000057: Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;
p.000057: “primary carer” in relation to an adult, means the person or organisation primarily engaged in caring for him;
p.000057: “Public Guardian” shall be construed in accordance with section 6;
p.000057: “State hospital” shall be construed in accordance with section 102 of the National Health Service (Scotland) Act 1978
p.000057: (c.29);
...
Health / Mentally Disabled
Searching for indicator disability:
(return to top)
p.000001: so; and
p.000001: (d) the views of any other person appearing to the person responsible for authorising or effecting the intervention
p.000001: to have an interest in the welfare of the adult or in the proposed intervention, where these views have been
p.000001: made known to the person responsible, in so far as it is reasonable and practicable to do so.
p.000001: (5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising
p.000001: functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is
p.000001: reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his
p.000001: property, financial affairs or personal welfare, as the case may be, and to develop new such skills.
p.000001: (6) For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has
p.000001: attained the age of 16 years; “incapable” means incapable of—
p.000001: (a) acting; or
p.000001: (b) making decisions; or
p.000001: (c) communicating decisions; or
p.000001: (d) understanding decisions; or
p.000001: (e) retaining the memory of decisions,
p.000001: as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate
p.000001: because of physical disability; but a person shall not fall within this definition by reason only of a lack or
p.000001: deficiency in a faculty of communication if that lack or deficiency can be made good by human or
p.000001: mechanical aid (whether of an interpretative nature or otherwise); and
p.000001: “incapacity” shall be construed accordingly.
p.000001: (7) In subsection (4)(c)(i) any reference to—
p.000001: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000001: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000001: guardianship is recognised by the law of Scotland;
p.000001: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000001: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000001: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000001: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000001: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000001: having effect during the granter’s incapacity.
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000003: 3
...
p.000073: 6 (1) In section 2 of the Judicial Factors (Scotland) Act 1889 at the beginning there shall be inserted “Without
p.000073: prejudice to section 6(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (Accountant of Court to be Public
p.000073: Guardian)”.
p.000073: (2) In section 6 of that Act, in the proviso, after “apply to” there shall be inserted “guardians appointed under
p.000073: the Adults with Incapacity (Scotland) Act 2000 (asp 4), to”.
p.000073: Heritable Securities (Scotland) Act 1894 (c.44)
p.000073: 7 In section 13 of the Heritable Securities (Scotland) Act 1894—
p.000073: (a) after “(b) trustees” there shall be inserted—
p.000073: “(c) the person entitled to act as the legal representative of any such person”;
p.000073: (b) “tutors, curators,” shall be repealed.
p.000073: National Assistance Act 1948 (c.29)
p.000073: 8 In section 49 of the National Assistance Act 1948 as it applies to Scotland—
p.000073: (a) immediately before “the council” where last occurring there shall be inserted “or applies for an intervention
p.000073: order or for appointment as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4)”;
p.000073: (b) immediately before “in so far as” there shall be inserted “or his functions under the intervention order or as
p.000073: guardian”.
p.000073: Offices, Shops and Railway Premises Act 1963 (c.41)
p.000073: 9 In section 90(1) of the Offices, Shops and Railway Premises Act 1963 in the definition of “owner” for “,
p.000073: tutor or curator” there shall be substituted “or person entitled to act as legal representative of a person under
p.000073: disability by reason of nonage or mental or other incapacity”.
p.000073: Social Work (Scotland) Act 1968 (c.49)
p.000073: 10 In section 64A(1) of the Social Work (Scotland) Act 1968 “and” between paragraphs (c) and (d) shall be
p.000073: repealed and after paragraph (d) there shall be inserted “and
p.000073: (e) an application for registration of an establishment under section 61B of this Act”.
p.000073:
p.000073: 74 Adults with Incapacity (Scotland) Act 2000
p.000073: (asp 4) Schedule 5—Minor and consequential amendments
p.000073:
p.000073: 11 In section 68(1) of that Act after “persons” where second occurring there shall be inserted
p.000073: “or, where the establishment is one which has power to manage residents’ financial affairs, for the
p.000073: purpose of ensuring that such financial affairs are being properly managed,”.
p.000073: Medicines Act 1968 (c.67)
p.000073: 12 In section 72 of the Medicines Act 1968—
p.000073: (a) in subsection (1) for “curator bonis” there shall be substituted “guardian”;
p.000073: (b) in subsections (3)(d) and (4)(c) “curator bonis,” shall be repealed.
p.000073: Sheriff Courts (Scotland) Act 1971 (c.58)
p.000073: 13 In section 32(1) of the Sheriff Courts (Scotland) Act 1971 after paragraph (j) there shall be inserted—
p.000073: “(k) prescribing the procedure to be followed in appointing a person under section 3(4) of the Adults
p.000073: with Incapacity (Scotland) Act 2000 (asp 4) and the functions of such a person.”.
p.000073: Land Registration (Scotland) Act 1979 (c.33)
...
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
p.000077: curator” there shall be substituted “or person entitled to act as the legal representative of a person
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
p.000077:
p.000077: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000079: 79
p.000079: Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) in subsection (2)(c) for first “person” there shall be substituted “person’s personal welfare”;
p.000079: (b) in subsection (4) after “58(1),” there shall be inserted “58(1A),”;
p.000079: (c) at the end there shall be added—
p.000079: “(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this
p.000079: section.”.
p.000079: (2) In section 58 of that Act—
p.000079: (a) for subsection (1) there shall be substituted—
p.000079: “(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an
p.000079: offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court—
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
...
Health / Mentally Incapacitated
Searching for indicator incapable:
(return to top)
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
p.000001: (1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in
p.000001: the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any
p.000001: proceedings under this Act for or in connection with an adult.
p.000001: (2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or
p.000001: effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot
p.000001: reasonably be achieved without the intervention.
p.000001: (3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention
p.000001: shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of
p.000001: the intervention.
p.000001: (4) In determining if an intervention is to be made and, if so, what intervention is to be made,
p.000001: account shall be taken of—
p.000001: (a) the present and past wishes and feelings of the adult so far as they can be ascertained by any
p.000001: means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise)
p.000001: appropriate to the adult;
p.000001: (b) the views of the nearest relative and the primary carer of the adult, in so far as it is reasonable and
p.000001: practicable to do so;
p.000001: (c) the views of—
p.000001:
p.000001: 2 Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4) Part 1—General
p.000001:
p.000001: (i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed
p.000001: intervention; and
p.000001: (ii) any person whom the sheriff has directed to be consulted, in so far as it is reasonable and practicable to do
p.000001: so; and
p.000001: (d) the views of any other person appearing to the person responsible for authorising or effecting the intervention
p.000001: to have an interest in the welfare of the adult or in the proposed intervention, where these views have been
p.000001: made known to the person responsible, in so far as it is reasonable and practicable to do so.
p.000001: (5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising
p.000001: functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is
p.000001: reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his
p.000001: property, financial affairs or personal welfare, as the case may be, and to develop new such skills.
p.000001: (6) For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has
p.000001: attained the age of 16 years; “incapable” means incapable of—
p.000001: (a) acting; or
p.000001: (b) making decisions; or
p.000001: (c) communicating decisions; or
p.000001: (d) understanding decisions; or
p.000001: (e) retaining the memory of decisions,
p.000001: as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate
p.000001: because of physical disability; but a person shall not fall within this definition by reason only of a lack or
p.000001: deficiency in a faculty of communication if that lack or deficiency can be made good by human or
p.000001: mechanical aid (whether of an interpretative nature or otherwise); and
p.000001: “incapacity” shall be construed accordingly.
p.000001: (7) In subsection (4)(c)(i) any reference to—
p.000001: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000001: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000001: guardianship is recognised by the law of Scotland;
p.000001: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000001: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000001: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000001: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
...
p.000003: (6) The sheriff may, on an application by—
p.000003: (a) the person authorised under the order;
p.000003: (b) the adult; or
p.000003: (c) any person entitled to apply for the order,
p.000003: make an order varying the terms of an order granted under subsection (2)(a).
p.000003:
p.000003: 4 Power of Court of Session or sheriff with regard to nearest relative
p.000003: (1) On an application by an adult, the court may, having regard to section 1 and being satisfied
p.000003: that to do so will benefit the adult, make an order that—
p.000003: (a) certain information shall not be disclosed, or intimation of certain applications shall not be given,
p.000003: to the nearest relative of the adult;
p.000003: (b) the functions of the nearest relative of the adult shall, during the continuance in force of the order, be
p.000003: exercised by a person, specified in the application, who is not the nearest relative of the adult but who—
p.000003: (i) is a person who would otherwise be entitled to be the nearest relative in terms of this Act;
p.000003: (ii) in the opinion of the court is a proper person to act as the nearest relative; and
p.000003: (iii) is willing to so act; or
p.000003: (c) no person shall, during the continuance in force of the order, exercise the functions of the nearest
p.000003: relative.
p.000003: (2) An order made under subsection (1) shall apply only to the exercise of the functions under this Act
p.000003: of the nearest relative.
p.000003: (3) The court may, on an application by an adult, make an order varying the terms of an order granted under
p.000003: subsection (1).
p.000003: (4) No application shall be made under this section by an adult who is not incapable within the meaning of this Act
p.000003: at the time of making the application.
p.000003:
p.000003: 5 Safeguarding of interests in Court of Session appeals or proceedings
p.000003: (1) In determining any appeal or in any other proceedings under this Act the Court of Session—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the appeal or other proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the second
p.000003: mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).
p.000003:
p.000003: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000005: 5
p.000005: Part 1—General
p.000005:
p.000005: (2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views
p.000005: so far as they are ascertainable to the court; but if the court considers that it is inappropriate
p.000005: that a person appointed to safeguard the interests of another under this section should also convey that
p.000005: other’s views to the court, the court may appoint another person for that latter purpose only.
p.000005:
p.000005: The Public Guardian
p.000005: 6 The Public Guardian and his functions
p.000005: (1) The Accountant of Court shall be the Public Guardian.
p.000005: (2) The Public Guardian shall have the following general functions under this Act—
p.000005: (a) to supervise any guardian or any person who is authorised under an intervention order in the exercise of his
...
p.000009:
p.000009: (4) The Scottish Ministers shall publish every code of practice made under this Act as for the time being in force.
p.000009:
p.000009: Appeal against decision as to incapacity
p.000009: 14 Appeal against decision as to incapacity
p.000009: A decision taken for the purposes of this Act, other than by the sheriff, as to the incapacity of an
p.000009: adult may be appealed by—
p.000009: (a) the adult; or
p.000009: (b) any person claiming an interest in the adult’s property, financial affairs or personal welfare
p.000009: relating to the purpose for which the decision was taken,
p.000009: to the sheriff or, where the decision was taken by the sheriff, to the sheriff principal and thence, with the leave of
p.000009: the sheriff principal, to the Court of Session.
p.000009:
p.000009:
p.000009: PART 2
p.000009: CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY
p.000009: 15 Creation of continuing power of attorney
p.000009: (1) Where an individual grants a power of attorney relating to his property or financial affairs in
p.000009: accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of
p.000009: law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions
p.000009: about the matter to which the power of attorney relates.
p.000009: (2) In this Act a power of attorney granted under subsection (1) is referred to as a “continuing
p.000009: power of attorney” and a person on whom such power is conferred is referred to as a “continuing attorney”.
p.000009: (3) A continuing power of attorney shall be valid only if it is expressed in a written document
p.000009: which—
p.000009: (a) is subscribed by the granter;
p.000009: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a continuing
p.000009: power;
p.000009: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000009: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000009: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000009: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the continuing
p.000009: power of attorney is granted the granter understands its nature and extent;
p.000009: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000009: the granting of the power.
p.000009: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000009: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000009:
p.000009: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000011: 11
...
p.000011: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power
p.000011: to which this section applies;
p.000011: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000011: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000011: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000011: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the welfare power
p.000011: of attorney is granted the granter understands its nature and extent;
p.000011: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000011: the granting of the power.
p.000011: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000011: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000011: (5) A welfare power of attorney—
p.000011: (a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a
p.000011: local authority or other body established by or under an enactment); and
p.000011: (b) shall not be exercisable unless—
p.000011: (i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney
p.000011: relates; or
p.000011: (ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.
p.000011: (6) A welfare attorney may not—
p.000011: (a) place the granter in a hospital for the treatment of mental disorder against his will; or
p.000011: (b) consent on behalf of the granter to any form of treatment mentioned in section 48(1) or (2).
p.000011: (7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the
p.000011: welfare attorney.
p.000011: (8) Any reference to a welfare attorney—
p.000011: (a) in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and
p.000011: (b) in subsection (6),
p.000011:
p.000011: 12 Adults with Incapacity (Scotland) Act 2000
p.000011: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
p.000011: shall include a reference to a person granted, under a contract, grant or appointment governed by the
p.000011: law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect
p.000011: during the granter’s incapacity.
p.000011:
p.000011: 17 Attorney not obliged to act in certain circumstances
p.000011: A continuing or welfare attorney shall not be obliged to do anything which would otherwise be within the
p.000011: powers of the attorney if doing it would, in relation to its value or utility, be unduly burdensome or expensive.
p.000011:
p.000011: 18 Power of attorney not granted in accordance with this Act
p.000011: A power of attorney granted after the commencement of this Act which is not granted in accordance with section 15
p.000011: or 16 shall have no effect during any period when the granter is incapable in relation to decisions
p.000011: about the matter to which the power of attorney relates.
p.000011:
p.000011: 19 Registration of continuing or welfare power of attorney
p.000011: (1) A continuing or welfare attorney shall have no authority to act until the document conferring the
p.000011: power of attorney has been registered under this section.
p.000011: (2) For the purposes of registration, the document conferring the power of attorney shall be sent to the Public
p.000011: Guardian who, if he is satisfied that a person appointed to act is prepared to act, shall—
p.000011: (a) enter prescribed particulars of it in the register maintained by him under section 6(2)(b)(i) or (ii) as the case
p.000011: may be;
p.000011: (b) send a copy of it with a certificate of registration to the sender;
p.000011: (c) if it confers a welfare power of attorney, send a copy of it to the Mental Welfare Commission.
p.000011: (3) The document conferring a continuing or welfare power of attorney may contain a condition that
p.000011: the Public Guardian shall not register it under this section until the occurrence of a specified event and
p.000011: in that case the Public Guardian shall not register it until he is satisfied that the specified event has occurred.
p.000011: (4) A copy of a document conferring a continuing or welfare power of attorney authenticated
p.000011: by the Public Guardian shall be accepted for all purposes as sufficient evidence of the contents of the
p.000011: original and of any matter relating thereto appearing in the copy.
p.000011: (5) The Public Guardian shall—
p.000011: (a) on the registration of a document conferring a continuing or welfare power of attorney, send a copy
p.000011: of it to the granter; and
p.000011: (b) where the document conferring the continuing or welfare power of attorney so requires, send a copy of
p.000011: it to not more than two specified individuals or holders of specified offices or positions.
p.000011: (6) A decision of the Public Guardian under subsection (2) as to whether or not a person is prepared to act or
p.000011: under subsection (3) as to whether or not the specified event has occurred may be appealed to the sheriff,
p.000011: whose decision shall be final.
p.000011:
p.000011: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000013: 13
p.000013: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: 20 Powers of sheriff
p.000013: (1) An application for an order under subsection (2) may be made to the sheriff by any person
p.000013: claiming an interest in the property, financial affairs or personal welfare of the granter of a continuing or welfare
p.000013: power of attorney.
p.000013: (2) Where, on an application being made under subsection (1), the sheriff is satisfied that the granter is
p.000013: incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000013: property, financial affairs or personal welfare insofar as the power of attorney relates to them, and that it is
p.000013: necessary to safeguard or promote these interests, he may make an order—
p.000013: (a) ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian to
p.000013: such extent as may be specified in the order;
p.000013: (b) ordaining the continuing attorney to submit accounts in respect of any period specified in the order
p.000013: for audit to the Public Guardian;
p.000013: (c) ordaining that the welfare attorney shall be subject to the supervision of the local authority to such extent as
p.000013: may be specified in the order;
p.000013: (d) ordaining the welfare attorney to give a report to him as to the manner in which the welfare attorney has
p.000013: exercised his powers during any period specified in the order;
p.000013: (e) revoking—
p.000013: (i) any of the powers granted by the continuing or welfare power of attorney; or
p.000013: (ii) the appointment of an attorney.
p.000013: (3) Where the sheriff makes an order under this section the sheriff clerk shall send a copy of the interlocutor
p.000013: containing the order to the Public Guardian who shall—
p.000013: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the
p.000013: case may be;
...
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
p.000015: fundholder and shall not be made if there is an existing authority to intromit under this Part.
p.000015:
p.000015: 26 Application for authority to intromit
p.000015: (1) An application form for authority to intromit with funds shall—
p.000015: (a) state the purposes of the proposed intromission, setting out the specific sums relating to each
p.000015: purpose;
p.000015: (b) be signed by the applicant;
p.000015: (c) be countersigned by a member of such class of persons as is prescribed, who shall declare in the form that—
p.000015: (i) he knows the applicant and has known him for at least 2 years prior to the date of the application;
p.000015: (ii) he knows the adult;
p.000015: (iii) he is not—
p.000015: (A) a relative of or person residing with the applicant or the adult; or
p.000015: (B) a director or employee of the fundholder; or
p.000015: (C) a solicitor acting on behalf of the adult or any other person mentioned in this sub-paragraph in relation to any
p.000015: matter under this Act; or
p.000015: (D) the medical practitioner who has issued the certificate under sub- paragraph (f);
p.000015: (iv) he believes the information contained in the document to be true; and
p.000015: (v) he believes the applicant to be a fit and proper person to intromit with the funds;
p.000015: (d) contain the names and addresses of the nearest relative and primary carer of the adult, if known;
p.000015: (e) identify the account with the fundholder in relation to which the authority is sought;
p.000015: (f) be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—
p.000015: (i) incapable in relation to decisions about; or
p.000015: (ii) incapable of acting to safeguard or promote his interests in, the funds;
p.000015: (g) contain an undertaking that he will open an account (the “designated account”) solely for the purposes
p.000015: of—
p.000015: (i) receiving funds transferred under section 29(1); and
p.000015: (ii) intromitting with those funds.
p.000015: (2) The applicant shall, not later than 14 days after the form has been countersigned as mentioned in
p.000015: subsection (1)(c), send the completed form to the Public Guardian.
p.000015:
p.000015: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000017: 17
p.000017: Part 3—Accounts and funds
p.000017:
p.000017: (3) On receipt of a properly completed form sent timeously to him under subsection (2), the Public Guardian shall
p.000017: intimate the application to the adult, his nearest relative, his primary carer and any person who the Public
p.000017: Guardian considers has an interest in the application and advise them of the prescribed period within which they may
p.000017: object to the granting of the application; and he shall not grant the application without affording to any objector an
p.000017: opportunity of being heard.
p.000017: (4) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application and
p.000017: where he does so he shall—
p.000017: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iii); and
p.000017: (b) issue a certificate of authority to the withdrawer.
p.000017: (5) A certificate of authority issued under subsection (4) shall instruct—
p.000017: (a) the fundholder that the account held in the name of the adult; and
...
p.000019: (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in
p.000019: question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to
p.000019: an end of a withdrawer’s authority under this subsection.
p.000019: (8) In subsection (7) any reference to—
p.000019:
p.000019: 20 Adults with Incapacity (Scotland) Act 2000
p.000019: (asp 4) Part 3—Accounts and funds
p.000019:
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: 32 Joint accounts
p.000019: Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes
p.000019: incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other
p.000019: joint account holder may continue to operate the account unless—
p.000019: (a) the terms of the account provide otherwise; or
p.000019: (b) he is barred by an order of any court from so doing.
p.000019:
p.000019: 33 Transfer of funds
p.000019: (1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for
p.000019: authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds
p.000019: from that account to another specified account.
p.000019: (2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of
p.000019: that transfer; and the account to which funds are transferred may be specified as to kind of account.
p.000019: (3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be
p.000019: final.
p.000019:
p.000019: 34 Disapplication of Part 3
p.000019: (1) This Part shall not apply in the case of an adult in relation to whom—
p.000019: (a) there is a guardian or continuing attorney with powers relating to the funds or account in question;
p.000019: or
p.000019: (b) an intervention order has been granted relating to the funds or account in question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
...
p.000021: only of Part 4 (Management of Residents’ Finances) of the Adults with Incapacity (Scotland) Act 2000 (asp
p.000021: 4).
p.000021: (2) Where an application for registration to which subsection (1) applies is granted, the
p.000021: establishment shall be entered in the register kept for the purposes of section 61(2) above by the local
p.000021: authority or, as the case may be, the Scottish Ministers.
p.000021: (3) The provisions of this Part of this Act shall apply to establishments to which this section applies subject to
p.000021: the following—
p.000021: (a) section 61(2) and (3) shall not apply;
p.000021: (b) section 62(8) and (8A) shall not apply;
p.000021: (c) section 65 shall not apply;
p.000021: (d) the provisions of section 67(1) shall apply only where the person carrying on the establishment is
p.000021: registered.”.
p.000021:
p.000021: 37 Residents whose affairs may be managed
p.000021: (1) The managers of an authorised establishment shall be entitled to manage on behalf of any resident in the
p.000021: establishment in relation to whom a certificate has been issued under subsection (2) any of the matters set out in
p.000021: section 39.
p.000021: (2) Where the managers of an authorised establishment, having considered all other appropriate courses of
p.000021: action, have decided that management on behalf of the resident of the matters set out in section 39 by them is the most
p.000021: appropriate course of action, they shall cause to be examined by a medical practitioner any resident in the
p.000021: establishment who they believe may be incapable in relation to decisions as to, or of safeguarding his interest in,
p.000021: any of the resident’s affairs referred to in section 39; and if the medical practitioner finds that the
p.000021: resident is so incapable he shall issue a certificate in prescribed form to that effect.
p.000021: (3) Subject to subsection (8), the managers of the authorised establishment shall intimate their
p.000021: intention of requiring an examination under subsection (2) to the resident and to the resident’s nearest relative.
p.000021: (4) Subject to subsection (8), the managers of the authorised establishment shall—
p.000021: (a) send a copy of the certificate to the resident and to the supervisory body, who shall notify the
p.000021: resident’s nearest relative;
p.000021: (b) notify the resident and the supervisory body that they intend to manage the resident’s affairs.
p.000021: (5) Notification under subsection (4)(b) shall include a statement as to what other courses of action had been
p.000021: considered and why they were not considered appropriate.
p.000021: (6) The medical practitioner who certifies under this section shall not—
p.000021: (a) be related to the resident or to any of the managers of the authorised establishment;
p.000021: (b) have any direct or indirect financial interest in the authorised establishment.
p.000021:
p.000021: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000023: 23
p.000023: Part 4—Management of residents’ finances
p.000023:
p.000023: (7) A certificate—
p.000023: (a) shall be reviewed where it appears to the managers of the authorised establishment, the
p.000023: medical practitioner who certifies under this section or any person having an interest in any of the resident’s
p.000023: affairs mentioned in section 39 that there has been any change in the condition or circumstances of the resident
p.000023: bearing on the resident’s incapacity; and
...
p.000025: (3) A certificate of authority shall be signed by the officer of the supervisory body authorised by
p.000025: the body to do so and shall—
p.000025: (a) specify accounts or other funds of the resident;
p.000025: (b) name the persons specified in the application (the “authorised persons”);
p.000025: (c) specify the period of validity of the certificate of authority, being a period not exceeding the
p.000025: period of validity of the certificate issued under section 37(2).
p.000025: (4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is
p.000025: specified in the certificate of authority and the fundholder may make payments accordingly.
p.000025: (5) The supervisory body may at any time after it has issued a certificate of authority, revoke it
p.000025: and if it does so it shall notify the fundholder of the revocation.
p.000025:
p.000025: 26 Adults with Incapacity (Scotland) Act 2000
p.000025: (asp 4) Part 4—Management of residents’ finances
p.000025:
p.000025:
p.000025: 43 Statement of resident’s affairs
p.000025: (1) In this section, “resident” means a resident of an authorised establishment whose affairs are being managed in
p.000025: accordance with the provisions of this Part and “statement” means a statement of the affairs of the resident.
p.000025: (2) Where a resident ceases to be incapable of managing his affairs, the managers of the establishment
p.000025: shall prepare a statement as at the date on which he ceases to be incapable and shall give a copy to him.
p.000025: (3) Where a resident moves from an authorised establishment to another authorised establishment, the
p.000025: managers of the establishment from which he moves shall, except where he has ceased to be incapable,
p.000025: prepare a statement as at the date on which he moves and shall send a copy of the statement to the managers of
p.000025: the other establishment.
p.000025: (4) Where a resident leaves an authorised establishment, other than to move to another authorised
p.000025: establishment and except where he has ceased to be incapable, the managers of the establishment shall prepare a
p.000025: statement as at the date on which he leaves and shall give a copy of the statement to any person who appears to them to
p.000025: be the person who will manage his affairs.
p.000025:
p.000025: 44 Resident ceasing to be resident of authorised establishment
p.000025: (1) Where a resident ceases to be a resident of an authorised establishment, or ceases to be incapable, the
p.000025: managers of the establishment shall continue, for a period not exceeding 3 months from the date on which he ceases to
p.000025: be a resident or, as the case may be, to be incapable, to manage his affairs while such other arrangements as
p.000025: are necessary for managing his affairs are being made.
p.000025: (2) At the end of the period referred to in subsection (1) during which the managers of the establishment have
p.000025: continued to manage the resident’s affairs, they shall prepare a statement and shall give a copy of it to—
p.000025: (a) the resident, if he has ceased to be incapable; or
p.000025: (b) any person who appears to them to be the person who will manage his affairs.
p.000025: (3) Where a resident ceases to be a resident of an authorised establishment and his affairs are to be managed by
p.000025: another establishment, authority or person (including himself) the managers of the establishment shall take such
p.000025: steps as are necessary to transfer his affairs to that establishment, authority or person, as the case may be.
p.000025: (4) Where a resident ceases to be a resident of an authorised establishment the managers of the establishment shall
p.000025: within 14 days of that event inform—
p.000025: (a) the supervisory body; and
p.000025: (b) where the resident has not ceased to be incapable and has moved neither—
p.000025: (i) to another authorised establishment; nor
p.000025: (ii) into the care of a local authority,
p.000025: the local authority of the area in which they expect him to reside.
p.000025:
p.000025: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000027: 27
p.000027: Part 4—Management of residents’ finances
p.000027:
p.000027: 45 Appeal, revocation etc.
p.000027: (1) Where it appears to a supervisory body that the managers of an authorised establishment are no longer operating
p.000027: as such or have failed to comply with any requirement of this Part or that, for any other reason, it is no longer
p.000027: appropriate that they should continue to manage residents’ affairs it may revoke—
p.000027: (a) in the case of a registered establishment to which section 61B of the Social Work (Scotland) Act 1968 (c.49)
p.000027: applies, the registration;
p.000027: (b) in any other case, the power to manage.
p.000027: (2) Where the managers of a registered establishment have given notice to the supervisory body under section 35(3)
p.000027: the supervisory body shall revoke the registration.
p.000027: (3) Where a registration or a power to manage has been revoked under this section, the supervisory
p.000027: body shall within a period of 14 days from such revocation take over management of the residents’
p.000027: affairs and, where they do so, comply with the requirements imposed by and under this Part upon
p.000027: the managers of an authorised establishment.
p.000027: (4) The supervisory body shall, within the period of 3 months after taking over management of residents’ affairs
...
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
p.000027: (b) has certified in accordance with subsection (5) that he is of this opinion.
p.000027: (2) Without prejudice to any authority conferred by any other enactment or rule of law, and subject to sections 49
p.000027: and 50 and to the following provisions of this section, the medical practitioner primarily responsible for the
p.000027: medical treatment of the adult shall have, during the period specified in the certificate, authority to do what
p.000027: is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or
p.000027: mental health of the adult.
p.000027: (3) The authority conferred by subsection (2) shall be exercisable also by any other person who is authorised by
p.000027: the medical practitioner primarily responsible for the medical treatment of the adult to carry out medical
p.000027: treatment and who is acting—
p.000027: (a) on his behalf under his instructions; or
p.000027: (b) with his approval or agreement.
p.000027: (4) In this Part “medical treatment” includes any procedure or treatment designed to safeguard or
p.000027: promote physical or mental health.
p.000027: (5) A certificate for the purposes of subsection (1) shall be in the prescribed form and shall specify the period
p.000027: during which the authority conferred by subsection (2) shall subsist, being a period which—
p.000027: (a) the medical practitioner primarily responsible for the medical treatment of the adult considers
...
p.000029: granted and continues to have effect prohibiting the giving of such medical treatment.
p.000029: (9) The Mental Welfare Commission shall establish and maintain a list of medical practitioners
p.000029: from whom they shall nominate the medical practitioner who is to give the opinion under subsection (4).
p.000029: (10) In this section any reference to—
p.000029:
p.000029: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000031: 31
p.000031: Part 5—Medical treatment and research
p.000031:
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 51 Authority for research
p.000031: (1) No surgical, medical, nursing, dental or psychological research shall be carried out on any adult who is
p.000031: incapable in relation to a decision about participation in the research unless—
p.000031: (a) research of a similar nature cannot be carried out on an adult who is capable in relation to such a decision; and
p.000031: (b) the circumstances mentioned in subsection (2) are satisfied.
p.000031: (2) The circumstances referred to in subsection (1) are that—
p.000031: (a) the purpose of the research is to obtain knowledge of—
p.000031: (i) the causes, diagnosis, treatment or care of the adult’s incapacity; or
p.000031: (ii) the effect of any treatment or care given during his incapacity to the adult which relates to that incapacity;
p.000031: and
p.000031: (b) the conditions mentioned in subsection (3) are fulfilled.
p.000031: (3) The conditions are—
p.000031: (a) the research is likely to produce real and direct benefit to the adult;
p.000031: (b) the adult does not indicate unwillingness to participate in the research;
p.000031: (c) the research has been approved by the Ethics Committee;
p.000031: (d) the research entails no foreseeable risk, or only a minimal foreseeable risk, to the adult;
p.000031: (e) the research imposes no discomfort, or only minimal discomfort, on the adult; and
p.000031: (f) consent has been obtained from any guardian or welfare attorney who has power to consent to the adult’s
...
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 52 Appeal against decision as to medical treatment
p.000031: Any decision taken for the purposes of this Part, other than a decision by a medical practitioner under
p.000031: section 50, as to the medical treatment of the adult may be appealed by any person having an interest in the personal
p.000031: welfare of the adult to the sheriff and thence, with the leave of the sheriff, to the Court of Session.
p.000031:
p.000031:
p.000031: PART 6
p.000031: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000031: Intervention orders
p.000031: 53 Intervention orders
p.000031: (1) The sheriff may, on an application by any person (including the adult himself) claiming an interest in the
p.000031: property, financial affairs or personal welfare of an adult, if he is satisfied that the adult is incapable
p.000031: of taking the action, or is incapable in relation to the decision about his property, financial affairs or personal
p.000031: welfare to which the application relates, make an order (in this Act referred to as an “intervention order”).
p.000031: (2) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000031: or guardianship order which may have been previously made in relation to the adult, and to any order varying,
p.000031: or ancillary to, such an order.
p.000031: (3) Where it appears to the local authority that—
p.000031: (a) the adult is incapable as mentioned in subsection (1); and
p.000031: (b) no application has been made or is likely to be made for an order under this section in relation
p.000031: to the decision to which the application under this subsection relates; and
p.000031: (c) an intervention order is necessary for the protection of the property, financial affairs or personal
p.000031: welfare of the adult,
p.000031:
p.000031: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000033: 33
p.000033: Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: they shall apply under this section for an order.
p.000033: (4) Section 57(3) and (4) shall apply to an application under this section and, for this purpose, for
p.000033: the reference to the individual or office holder nominated for appointment as guardian there shall be substituted
p.000033: a reference to a person nominated in such application.
p.000033: (5) An intervention order may—
p.000033: (a) direct the taking of any action specified in the order;
p.000033: (b) authorise the person nominated in the application to take such action or make such decision in relation to
p.000033: the property, financial affairs or personal welfare of the adult as is specified in the order;
p.000033: (6) Where an intervention order directs the acquisition of accommodation for, or the disposal of any
...
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
p.000035: the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as
p.000035: the case may be, the mental health officer, within 21 days of the date of the notice.
p.000035: (5) The sheriff may, on an application being made to him, at any time before the disposal of the application made
p.000035: under this section, make an order for the appointment of an interim guardian.
p.000035: (6) The appointment of an interim guardian in pursuance of this section shall, unless recalled earlier,
p.000035: cease to have effect—
p.000035: (a) on the appointment of a guardian under section 58; or
p.000035: (b) at the end of the period of 3 months from the date of appointment, whichever is the earlier.
p.000035:
p.000035: 58 Disposal of application
p.000035: (1) Where the sheriff is satisfied in considering an application under section 57 that—
p.000035: (a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000035: property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
p.000035: (b) no other means provided by or under this Act would be sufficient to enable the adult’s interests in his
p.000035: property, financial affairs or personal welfare to be safeguarded or promoted,
p.000035: he may grant the application.
p.000035: (2) In considering an application under section 57, the sheriff shall have regard to any intervention
p.000035: order or guardianship order which may have been previously made in relation to the adult, and to any order
p.000035: varying, or ancillary to, such an order.
p.000035: (3) Where the sheriff is satisfied that an intervention order would be sufficient as mentioned in subsection (1),
p.000035: he may treat the application under this section as an application for an intervention order under section 53 and may
p.000035: make such order as appears to him to be appropriate.
p.000035:
p.000035: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000037: 37
p.000037: Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (4) Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as
p.000037: a “guardianship order”) appointing the individual or office holder nominated in the application to be the
p.000037: guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown,
p.000037: he may determine.
p.000037: (5) Where more than one individual or office holder is nominated in the application, a guardianship
p.000037: order may, without prejudice to the power under section 62(1) to appoint joint guardians, appoint two or more guardians
...
p.000055: (d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings.
p.000055: (4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the
p.000055: order to the Public Guardian who shall—
p.000055: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of
p.000055: the 2000 Act;
p.000055: (b) unless he considers that the notification would be likely to pose a serious risk to the person’s health
p.000055: notify the person of the appointment of the guardian; and
p.000055: (c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.
p.000055: (5) A guardianship order shall continue in force for a period of 3 years or such other period
p.000055: (including an indefinite period) as, on cause shown, the court may determine.
p.000055: (6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or
p.000055: 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84
p.000055: of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be
p.000055: determined in accordance with this Act as it was immediately in force before that date.”.
p.000055:
p.000055: 85 Jurisdiction and private international law
p.000055: Schedule 3 shall have effect for the purposes of defining the jurisdiction, in respect of adults who are incapable
p.000055: within the meaning of this Act, of the Scottish judicial and administrative authorities and for making
p.000055: provision as to the private international law of Scotland in that respect.
p.000055:
p.000055: 86 Regulations
p.000055: (1) Any power of the Scottish Ministers to make regulations under this Act shall be exercisable by
p.000055: statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000055: (2) Any such power may be exercised to make different provision for different cases or classes of case
p.000055: and includes power to make such incidental, supplemental, consequential or transitional provision or savings as appear
p.000055: to the Scottish Ministers to be appropriate.
p.000055:
p.000055: 87 Interpretation
p.000055: (1) In this Act, unless the context otherwise requires—
p.000055:
p.000055: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000057: 57
p.000057: Part 7—Miscellaneous
p.000057:
p.000057: “adult” shall be construed in accordance with section 1;
p.000057: “continuing attorney” shall be construed in accordance with section 15; “guardianship order” shall be construed in
p.000057: accordance with section 58; “incapable” and “incapacity” shall be construed in accordance with section 1; “intervention
p.000057: order” shall be construed in accordance with section 53;
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
...
p.000071: curator bonis or a tutor or curator of a person of or over the age of 16 years shall be construed as a reference to a
p.000071: guardian with similar powers appointed to that person under this Act.
p.000071: Defence Act 1842 (c.94)
p.000071: 2 (1) In section 15 of the Defence Act 1842—
p.000071: (a) after “nonage” in both places there shall be inserted “or mental incapacity”;
p.000071: (b) “or not of whole mind” shall be repealed;
p.000071: (c) for “out of prison, within this land, or of whole mind” there shall be substituted “within this land”.
p.000071: (2) In section 27 of that Act for “lunacy” there shall be substituted “mental incapacity”.
p.000071: Judicial Factors Act 1849 (c.51)
p.000071: 3 In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward” there
p.000071: shall be substituted “coming to an end of the situation giving rise to it”.
p.000071: Improvement of Land Act 1864 (c.114)
p.000071: 4 (1) In section 24 of the Improvement of Land Act 1864—
p.000071: (a) “tutors,”, “curators,” “tutor,” and “curator,” shall be repealed;
p.000071:
p.000071: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000073: 73
p.000073: Schedule 5—Minor and consequential amendments
p.000073:
p.000073: (b) for “persons suffering from mental disorder within the meaning of the Mental Health (Scotland) Act,
p.000073: 1960” there shall be substituted “adults who are incapable within the meaning of the Adults with Incapacity (Scotland)
p.000073: Act 2000 (asp 4)”.
p.000073: (2) In section 68 of that Act for “Mental Health (Scotland) Act 1984” there shall be substituted
p.000073: “Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000073: Titles to Land (Consolidation) (Scotland) Act 1868 (c.101)
p.000073: 5 (1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder
p.000073: within the meaning of the Mental Health (Scotland) Act 1960” there shall be substituted “mental or other incapacity”.
p.000073: (2) In section 62 of that Act for “of insane mind” there shall be substituted “mental or other incapacity”.
p.000073: Judicial Factors (Scotland) Act 1889 (c.39)
p.000073: 6 (1) In section 2 of the Judicial Factors (Scotland) Act 1889 at the beginning there shall be inserted “Without
p.000073: prejudice to section 6(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (Accountant of Court to be Public
p.000073: Guardian)”.
p.000073: (2) In section 6 of that Act, in the proviso, after “apply to” there shall be inserted “guardians appointed under
p.000073: the Adults with Incapacity (Scotland) Act 2000 (asp 4), to”.
p.000073: Heritable Securities (Scotland) Act 1894 (c.44)
p.000073: 7 In section 13 of the Heritable Securities (Scotland) Act 1894—
p.000073: (a) after “(b) trustees” there shall be inserted—
p.000073: “(c) the person entitled to act as the legal representative of any such person”;
...
p.000077: (asp 4) Schedule 5—Minor and consequential amendments
p.000077:
p.000077: Insolvency Act 1986 (c.45)
p.000077: 18 In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
...
Health / Physically Disabled
Searching for indicator illness:
(return to top)
p.000055: statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000055: (2) Any such power may be exercised to make different provision for different cases or classes of case
p.000055: and includes power to make such incidental, supplemental, consequential or transitional provision or savings as appear
p.000055: to the Scottish Ministers to be appropriate.
p.000055:
p.000055: 87 Interpretation
p.000055: (1) In this Act, unless the context otherwise requires—
p.000055:
p.000055: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000057: 57
p.000057: Part 7—Miscellaneous
p.000057:
p.000057: “adult” shall be construed in accordance with section 1;
p.000057: “continuing attorney” shall be construed in accordance with section 15; “guardianship order” shall be construed in
p.000057: accordance with section 58; “incapable” and “incapacity” shall be construed in accordance with section 1; “intervention
p.000057: order” shall be construed in accordance with section 53;
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
p.000057: of that Act;
p.000057: “office holder”, in relation to a guardian, means the chief social work officer of the local authority;
p.000057: “person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public
p.000057: Guardian;
p.000057: “power of attorney” includes a factory and commission;
p.000057: “prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public
p.000057: Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;
...
Health / ill
Searching for indicator ill:
(return to top)
p.000001: 65 Records: guardians
p.000001: 66 Gifts
p.000001: 67 Effect of appointment and transactions of guardian
p.000001: 68 Reimbursement and remuneration of guardian
p.000001: 69 Forfeiture of guardian’s remuneration
p.000001: 70 Non-compliance with decisions of guardian with welfare powers
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
...
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
p.000053: principles.
p.000053: (2) In this section any reference to—
p.000053: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000053: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
p.000055: welfare of an adult to ill-treat or wilfully neglect that adult.
p.000055: (2) A person guilty of an offence under subsection (1) shall be liable—
p.000055: (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory
p.000055: maximum or both;
p.000055: (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
p.000055:
p.000055: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000055: (1) Parts 1, 5, 6 and 7 shall apply to a guardian appointed under section 57(2)(c) or section 58(1)
p.000055: of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Act”) as they apply to a guardian with powers
p.000055: relating to the personal welfare of an adult appointed under Part 6; and accordingly the 1995 Act shall be
p.000055: amended as follows.
p.000055: (2) After section 58 there shall be inserted—
p.000055: “58A Application of Adults with Incapacity (Scotland) Act 2000
p.000055: (1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with
p.000055: Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—
p.000055: (a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this
p.000055: section referred to as a “guardianship order”) whether appointed before or after the coming into force of these
...
Social / Access to Social Goods
Searching for indicator access:
(return to top)
p.000077: country, powers (however expressed) relating to the granter’s personal welfare and having effect during the
p.000077: granter’s incapacity;”.
p.000077:
p.000077: 78 Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4) Schedule 5—Minor and consequential amendments
p.000077:
p.000077: Insolvency Act 1986 (c.45)
p.000077: 18 In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
...
Social / Age
Searching for indicator age:
(return to top)
p.000001: practicable to do so;
p.000001: (c) the views of—
p.000001:
p.000001: 2 Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4) Part 1—General
p.000001:
p.000001: (i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed
p.000001: intervention; and
p.000001: (ii) any person whom the sheriff has directed to be consulted, in so far as it is reasonable and practicable to do
p.000001: so; and
p.000001: (d) the views of any other person appearing to the person responsible for authorising or effecting the intervention
p.000001: to have an interest in the welfare of the adult or in the proposed intervention, where these views have been
p.000001: made known to the person responsible, in so far as it is reasonable and practicable to do so.
p.000001: (5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising
p.000001: functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is
p.000001: reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his
p.000001: property, financial affairs or personal welfare, as the case may be, and to develop new such skills.
p.000001: (6) For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has
p.000001: attained the age of 16 years; “incapable” means incapable of—
p.000001: (a) acting; or
p.000001: (b) making decisions; or
p.000001: (c) communicating decisions; or
p.000001: (d) understanding decisions; or
p.000001: (e) retaining the memory of decisions,
p.000001: as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate
p.000001: because of physical disability; but a person shall not fall within this definition by reason only of a lack or
p.000001: deficiency in a faculty of communication if that lack or deficiency can be made good by human or
p.000001: mechanical aid (whether of an interpretative nature or otherwise); and
p.000001: “incapacity” shall be construed accordingly.
p.000001: (7) In subsection (4)(c)(i) any reference to—
p.000001: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000001: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000001: guardianship is recognised by the law of Scotland;
p.000001: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000001: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000001: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
...
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
p.000053: suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest
p.000053: thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.
p.000053: (2) Subsection (1) shall be without prejudice to sections 69 and 82.
p.000053:
p.000053: 82 Limitation of liability
p.000053: (1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised
p.000053: under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of
p.000053: care or fiduciary duty owed to the adult if he has or they have—
p.000053: (a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
...
p.000069: 69
p.000069: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: the “ratification date” means the date when the Convention is ratified as respects Scotland;
p.000069: the “Scottish Central Authority” means—
p.000069: (a) an authority designated under Article 28 of the Convention for the purposes of acting as such; or
p.000069: (b) if no authority has been so designated any authority appointed by the Scottish Ministers for the
p.000069: purposes of carrying out the functions to be carried out under this schedule by the Scottish Central Authority;
p.000069: the “Scottish judicial and administrative authorities” means the courts having functions under this Act
p.000069: and the Public Guardian, the Mental Welfare Commission, local authorities and supervisory bodies.
p.000069:
p.000069:
p.000069: SCHEDULE 4
p.000069: (introduced by section 88(1))
p.000069: CONTINUATION OF EXISTING CURATORS, TUTORS, GUARDIANS AND ATTORNEYS UNDER THIS ACT
p.000069: Curators and tutors
p.000069: 1 (1) On the relevant date, any person holding office as curator bonis to an adult shall become guardian of that
p.000069: adult with power to manage the property or financial affairs of the adult.
p.000069: (2) Where a person—
p.000069: (a) before the relevant date, holds office as curator bonis to a person who has not attained the age of
p.000069: 16 years and does not hold such office for the sole reason that the person has not attained the age of 16 years; or
p.000069: (b) after the relevant date, is appointed as curator bonis to such a person,
p.000069: he shall become guardian of that person when that person attains the age of 16 years, with power to manage his property
p.000069: or financial affairs.
p.000069: (3) Where any proceedings for the appointment of a curator bonis to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed curator bonis shall become guardian of that adult with
p.000069: power to manage the property or financial affairs of the adult.
p.000069: (4) On the relevant date, any person holding office as tutor-dative to an adult shall become guardian of that adult
p.000069: and shall continue to have the powers conferred by the court on his appointment as tutor-dative.
p.000069: (5) Where any proceedings for the appointment of a tutor-dative to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed tutor-dative shall become guardian of that adult with such
p.000069: power to manage the property, financial affairs or personal welfare of the adult as the court may
p.000069: determine.
p.000069: (6) On the relevant date, any person holding office as tutor-at-law to an adult shall become guardian of that adult
p.000069: with power to manage the property, financial affairs or personal welfare of the adult.
p.000069:
...
p.000071: sub-paragraph (1).
p.000071: (4) Where the managers have authority from the Mental Welfare Commission to hold and manage money and other
p.000071: property in excess of the aggregate value mentioned in section 39 they may do so in relation to the money and
p.000071: valuables of any person which they continue to hold under sub-paragraph (1).
p.000071: Application of Act to persons who become guardians by virtue of this schedule
p.000071: 6 (1) For the purposes of their application to persons who have become guardians by virtue of this schedule,
p.000071: the following provisions shall have effect as modified or disapplied by this paragraph.
p.000071: (2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed
p.000071: as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law
p.000071: or guardian under the 1984 Act, as the case may be.
p.000071: (3) Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was
p.000071: a curator bonis, tutor dative or tutor-at-law to that adult; and, for the purpose of that application, for the
p.000071: reference in section 60(1) to a period in respect of which a guardianship order has been made or
p.000071: renewed there shall be substituted a reference to the period of 5 years from the relevant date or (in the case of a
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
p.000071: they would have continued had he not become a guardian by virtue of this schedule to this Act.
p.000071: (5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall
p.000071: be construed as including references to the local authority.
p.000071: (6) Schedule 2 shall apply only—
p.000071: (a) in a case where; and
p.000071: (b) to the extent that,
p.000071: the Public Guardian has determined that it should apply.
p.000071: (7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make
p.000071: such a determination, may be appealed to the sheriff, whose decision shall be final.
p.000071: (8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by
p.000071: virtue of this schedule.
p.000071:
p.000071: 72 Adults with Incapacity (Scotland) Act 2000
p.000071: (asp 4) Schedule 5—Minor and consequential amendments
p.000071:
p.000071: Transitional Provisions
p.000071: 7 Until Part 6 comes into force—
p.000071: (a) the references in section 23(1)(c) to a guardian shall be omitted;
p.000071: (b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a
p.000071: reference to the appointment of a curator bonis or tutor- dative or tutor-at-law with powers relating to the
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
p.000071: (d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.
p.000071: Interpretation
p.000071: 8 In this schedule the “relevant date” in relation to any paragraph in which it appears means
p.000071: the date of coming into force of that paragraph.
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071: General
p.000071: SCHEDULE 5
p.000071: (introduced by section 88(2))
p.000071: MINOR AND CONSEQUENTIAL AMENDMENTS
p.000071: 1 With effect from the commencement of this paragraph any reference in any enactment or document to a
p.000071: curator bonis or a tutor or curator of a person of or over the age of 16 years shall be construed as a reference to a
p.000071: guardian with similar powers appointed to that person under this Act.
p.000071: Defence Act 1842 (c.94)
p.000071: 2 (1) In section 15 of the Defence Act 1842—
p.000071: (a) after “nonage” in both places there shall be inserted “or mental incapacity”;
p.000071: (b) “or not of whole mind” shall be repealed;
p.000071: (c) for “out of prison, within this land, or of whole mind” there shall be substituted “within this land”.
p.000071: (2) In section 27 of that Act for “lunacy” there shall be substituted “mental incapacity”.
p.000071: Judicial Factors Act 1849 (c.51)
p.000071: 3 In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward” there
p.000071: shall be substituted “coming to an end of the situation giving rise to it”.
p.000071: Improvement of Land Act 1864 (c.114)
p.000071: 4 (1) In section 24 of the Improvement of Land Act 1864—
p.000071: (a) “tutors,”, “curators,” “tutor,” and “curator,” shall be repealed;
p.000071:
p.000071: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000073: 73
p.000073: Schedule 5—Minor and consequential amendments
p.000073:
p.000073: (b) for “persons suffering from mental disorder within the meaning of the Mental Health (Scotland) Act,
p.000073: 1960” there shall be substituted “adults who are incapable within the meaning of the Adults with Incapacity (Scotland)
p.000073: Act 2000 (asp 4)”.
p.000073: (2) In section 68 of that Act for “Mental Health (Scotland) Act 1984” there shall be substituted
p.000073: “Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000073: Titles to Land (Consolidation) (Scotland) Act 1868 (c.101)
p.000073: 5 (1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder
p.000073: within the meaning of the Mental Health (Scotland) Act 1960” there shall be substituted “mental or other incapacity”.
p.000073: (2) In section 62 of that Act for “of insane mind” there shall be substituted “mental or other incapacity”.
p.000073: Judicial Factors (Scotland) Act 1889 (c.39)
...
Social / Child
Searching for indicator child:
(return to top)
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
p.000077: curator” there shall be substituted “or person entitled to act as the legal representative of a person
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
...
Searching for indicator children:
(return to top)
p.000039: (4) An application under subsection (3) shall contain—
p.000039: (a) the name and address of the guardian;
p.000039: (b) a statement that the guardian has powers relating to each property specified in the order;
p.000039: (c) a copy of the interlocutor.
p.000039: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000039: (a) record the interlocutor in the Register; and
p.000039: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000039: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000039: sheet of the property to show the interlocutor.
p.000039: (7) The guardian shall send the endorsed interlocutor or, as the case may be, the updated Land Certificate or
p.000039: an office copy thereof to the Public Guardian who shall enter prescribed particulars of it in the register
p.000039: maintained by him under section 6(2)(b)(iv).
p.000039:
p.000039: Joint and substitute guardians
p.000039: 62 Joint guardians
p.000039: (1) An application may be made to the sheriff—
p.000039: (a) by two or more individuals seeking appointment, for their appointment as joint guardians to an adult;
p.000039: or
p.000039: (b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly
p.000039: with one or more existing guardians.
p.000039: (2) Joint guardians shall not be appointed to an adult unless—
p.000039: (a) the individuals so appointed are parents, siblings or children of the adult; or
p.000039: (b) the sheriff is satisfied that, in the circumstances, it is appropriate to appoint as joint
p.000039: guardians individuals who are not related to the adult as mentioned in paragraph (a).
p.000039:
p.000039: 40 Adults with Incapacity (Scotland) Act 2000
p.000039: (asp 4) Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: (3) Where an application is made under subsection (1)(a), sections 58 and 59 shall apply for the purposes of the
p.000039: disposal of that application as they apply for the disposal of an application under section 57.
p.000039: (4) In deciding if an individual is suitable for appointment as additional guardian under subsection
p.000039: (1)(b), the sheriff shall have regard to the matters set out in section 59(3) to (5).
p.000039: (5) Where the sheriff appoints an additional guardian under this section, the sheriff clerk shall send a
p.000039: copy of the order appointing him to the Public Guardian who shall—
p.000039: (a) enter prescribed particulars in the register maintained by him under section 6(2) (b)(iv) of this Act;
p.000039: (b) when satisfied that the additional guardian has found caution if so required, issue a certificate of
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
...
Social / In Nursing Home
Searching for indicator nursing home:
(return to top)
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000021: 21
p.000021: Part 4—Management of residents’ finances
p.000021:
p.000021: PART 4
p.000021: MANAGEMENT OF RESIDENTS’ FINANCES
p.000021: 35 Application of Part 4
p.000021: (1) Subject to subsection (3), this Part applies to the management of the matters set out in section 39 relating to
p.000021: any resident of any of the following establishments—
p.000021: (a) a hospital or other premises mentioned in section 10(3)(a) of the Nursing Homes Registration (Scotland) Act 1938
p.000021: (c.73) (“the 1938 Act”);
p.000021: (b) a nursing home registered under the 1938 Act;
p.000021: (c) a hospital or similar institution which, but for section 6 of that Act, would require to be registered under the
p.000021: 1938 Act;
p.000021: (d) an establishment in respect of which there is registration under section 61B, 62 or 63 of the Social Work
p.000021: (Scotland) Act 1968 (c.49) (“the 1968 Act”);
p.000021: (e) an establishment in relation to which, but for the exception provided by section 61(1A)(a)
p.000021: of the 1968 Act, there would require to be registration under section 62 or 63 of the 1968 Act;
p.000021: (f) a private hospital registered under Part IV of the Mental Health (Scotland) Act 1984 (c.36) (“the
p.000021: 1984 Act”);
p.000021: (g) a State hospital.
p.000021: (2) In this Part establishments mentioned in paragraph (b), (ca), (cb), (d) or (f) of subsection
p.000021: (1) are referred to as “registered establishments”, all other establishments mentioned in subsection (1) are
p.000021: referred to as “unregistered establishments”, and registered and unregistered establishments together are
p.000021: referred to as “authorised establishments”.
p.000021: (3) This Part shall not apply to a registered establishment where notice in writing is given to the supervisory
p.000021: body by—
p.000021: (a) the managers of the registered establishment; or
p.000021: (b) an applicant for registration of an establishment, that it shall not apply.
p.000021: (4) The Scottish Ministers may by regulations amend the list of authorised establishments set out in subsection
p.000021: (1).
p.000021: (5) In this Part, “the managers” has the meaning set out in schedule 1; and “resident” in relation
p.000021: to an authorised establishment means an adult whose main residence for the time being is the authorised
...
p.000059: (c) in relation to a State hospital—
p.000059: (i) the Scottish Ministers; or
p.000059: (ii) if a State Hospital Management Committee has been appointed to manage that hospital, that
p.000059: Committee; or
p.000059: (iii) if the management of that hospital has been delegated to a Health Board, to a Special Health Board, to
p.000059: a National Health Service trust or to the Common Services Agency for the Scottish Health Service, that Board,
p.000059: trust or Agency, as the case may be, or any person appointed by the Board, trust or agency, as the case may be, to
p.000059: manage the hospital;
p.000059: (d) in relation to a private hospital registered under Part IV of the 1984 Act and an unregistered hospital, the
p.000059: person or persons carrying on the hospital or any other person appointed by that person or persons to manage the
p.000059: hospital;
p.000059: (e) in relation to a residential establishment provided by a local authority under section 59 of the
p.000059: Social Work (Scotland) Act 1968 (c.49), the local authority or any person appointed by the local authority to manage
p.000059: the establishment;
p.000059: (f) in relation to an establishment in respect of which there is registration under section 62 or 63 of
p.000059: the said Act of 1968, the person registered in respect of it or any person appointed by that person to manage the
p.000059: establishment provided that the person so appointed has been named in the application for registration
p.000059: as a person who may be so appointed;
p.000059: (g) in relation to a nursing home in respect of which there is registration under the Nursing Homes
p.000059: Registration (Scotland) Act 1938 (c.73), the person registered in respect of it or any person appointed by that person
p.000059: to manage the nursing home provided that the person so appointed has been named in the application as a
p.000059: person who may be so appointed.
p.000059: 2 The Scottish Ministers may by regulations amend the list of managers in paragraph 1.
p.000059:
p.000059: 60 Adults with Incapacity (Scotland) Act 2000
p.000059: (asp 4) Schedule 2—Management of estate of adult
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059: Management plan
p.000059: SCHEDULE 2
p.000059: (introduced by section 64)
p.000059: MANAGEMENT OF ESTATE OF ADULT
p.000059: 1 (1) A guardian with powers relating to the property and financial affairs of the adult shall, unless the
p.000059: sheriff otherwise directs, prepare a plan (a “management plan”), taking account of any directions given
p.000059: by the sheriff in the order appointing him, for the management, investment and realisation of the adult’s
p.000059: estate and for the application of the estate to the adult’s needs, so far as the estate falls within the guardian’s
p.000059: authority.
p.000059: (2) The management plan shall be submitted in draft by the guardian to the Public Guardian for his approval, along
p.000059: with the inventory of the adult’s estate prepared under paragraph 3, not more than one month, or such other
p.000059: period as the Public Guardian may allow, after the submission of the inventory.
p.000059: (3) The Public Guardian may approve the management plan submitted to him under sub- paragraph (2) or he may
p.000059: approve it with amendments and the plan as so approved or as so amended shall be taken account of by the guardian in
...
Social / Incarcerated
Searching for indicator prison:
(return to top)
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
p.000071: (d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.
p.000071: Interpretation
p.000071: 8 In this schedule the “relevant date” in relation to any paragraph in which it appears means
p.000071: the date of coming into force of that paragraph.
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071: General
p.000071: SCHEDULE 5
p.000071: (introduced by section 88(2))
p.000071: MINOR AND CONSEQUENTIAL AMENDMENTS
p.000071: 1 With effect from the commencement of this paragraph any reference in any enactment or document to a
p.000071: curator bonis or a tutor or curator of a person of or over the age of 16 years shall be construed as a reference to a
p.000071: guardian with similar powers appointed to that person under this Act.
p.000071: Defence Act 1842 (c.94)
p.000071: 2 (1) In section 15 of the Defence Act 1842—
p.000071: (a) after “nonage” in both places there shall be inserted “or mental incapacity”;
p.000071: (b) “or not of whole mind” shall be repealed;
p.000071: (c) for “out of prison, within this land, or of whole mind” there shall be substituted “within this land”.
p.000071: (2) In section 27 of that Act for “lunacy” there shall be substituted “mental incapacity”.
p.000071: Judicial Factors Act 1849 (c.51)
p.000071: 3 In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward” there
p.000071: shall be substituted “coming to an end of the situation giving rise to it”.
p.000071: Improvement of Land Act 1864 (c.114)
p.000071: 4 (1) In section 24 of the Improvement of Land Act 1864—
p.000071: (a) “tutors,”, “curators,” “tutor,” and “curator,” shall be repealed;
p.000071:
p.000071: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000073: 73
p.000073: Schedule 5—Minor and consequential amendments
p.000073:
p.000073: (b) for “persons suffering from mental disorder within the meaning of the Mental Health (Scotland) Act,
p.000073: 1960” there shall be substituted “adults who are incapable within the meaning of the Adults with Incapacity (Scotland)
p.000073: Act 2000 (asp 4)”.
p.000073: (2) In section 68 of that Act for “Mental Health (Scotland) Act 1984” there shall be substituted
p.000073: “Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000073: Titles to Land (Consolidation) (Scotland) Act 1868 (c.101)
p.000073: 5 (1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder
...
Social / Marital Status
Searching for indicator married:
(return to top)
p.000013: (2) Subject to subsection (4), the resignation shall not have effect until the expiry of a period of
p.000013: 28 days commencing with the date of receipt by the Public Guardian of the notice given under subsection (1); and
p.000013: on its becoming effective the Public Guardian shall enter prescribed particulars in the register maintained
p.000013: by him under section 6(2)(b)(i) or (ii) as the case may be.
p.000013:
p.000013: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000015: 15
p.000015: Part 3—Accounts and funds
p.000015:
p.000015: (3) Where the resignation is of a welfare attorney, the Public Guardian shall notify the local authority and (in
p.000015: a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder) the
p.000015: Mental Welfare Commission.
p.000015: (4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a
p.000015: substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if
p.000015: evidence that—
p.000015: (a) the remaining joint attorney is willing to continue to act; or
p.000015: (b) the substitute attorney is willing to act, accompanies the notice.
p.000015:
p.000015: 24 Termination of continuing or welfare power of attorney
p.000015: (1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall,
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
...
Social / Police Officer
Searching for indicator officer:
(return to top)
p.000011: (3) A welfare power of attorney shall be valid only if it is expressed in a written document which—
p.000011: (a) is subscribed by the granter;
p.000011: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power
p.000011: to which this section applies;
p.000011: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000011: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000011: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000011: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the welfare power
p.000011: of attorney is granted the granter understands its nature and extent;
p.000011: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000011: the granting of the power.
p.000011: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000011: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000011: (5) A welfare power of attorney—
p.000011: (a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a
p.000011: local authority or other body established by or under an enactment); and
p.000011: (b) shall not be exercisable unless—
p.000011: (i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney
p.000011: relates; or
p.000011: (ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.
p.000011: (6) A welfare attorney may not—
p.000011: (a) place the granter in a hospital for the treatment of mental disorder against his will; or
p.000011: (b) consent on behalf of the granter to any form of treatment mentioned in section 48(1) or (2).
p.000011: (7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the
p.000011: welfare attorney.
p.000011: (8) Any reference to a welfare attorney—
p.000011: (a) in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and
p.000011: (b) in subsection (6),
p.000011:
p.000011: 12 Adults with Incapacity (Scotland) Act 2000
p.000011: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
...
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
p.000015: fundholder and shall not be made if there is an existing authority to intromit under this Part.
p.000015:
p.000015: 26 Application for authority to intromit
p.000015: (1) An application form for authority to intromit with funds shall—
p.000015: (a) state the purposes of the proposed intromission, setting out the specific sums relating to each
p.000015: purpose;
p.000015: (b) be signed by the applicant;
p.000015: (c) be countersigned by a member of such class of persons as is prescribed, who shall declare in the form that—
p.000015: (i) he knows the applicant and has known him for at least 2 years prior to the date of the application;
p.000015: (ii) he knows the adult;
...
p.000025: (f) produce such records when requested to do so by the resident, his nearest relative or the supervisory body;
p.000025: (g) spend money only on items or services which are of benefit to the resident on whose behalf the
p.000025: funds are held;
p.000025: (h) not spend money on items or services which are provided by the establishment to or for such resident as part of
p.000025: its normal service;
p.000025: (i) make proper provision for indemnifying residents against any loss attributable to—
p.000025: (i) any act or omission on the part of the managers of the establishment in exercising the powers
p.000025: conferred by this Part or of others for whom the managers are responsible or attributable to any
p.000025: expenditure in breach of paragraph (g);
p.000025: (ii) any breach of duty, misuse of funds or failure to act reasonably and in good faith on the part of the managers.
p.000025:
p.000025: 42 Authorisation of named manager to withdraw from resident’s account
p.000025: (1) On an application in writing by the managers of an authorised establishment the supervisory body
p.000025: may issue a certificate of authority under this section in relation to any resident named in the application.
p.000025: (2) An application under subsection (1) shall specify one or more persons (being managers, officers or members
p.000025: of staff of the establishment) who shall exercise the authority conferred by this section.
p.000025: (3) A certificate of authority shall be signed by the officer of the supervisory body authorised by
p.000025: the body to do so and shall—
p.000025: (a) specify accounts or other funds of the resident;
p.000025: (b) name the persons specified in the application (the “authorised persons”);
p.000025: (c) specify the period of validity of the certificate of authority, being a period not exceeding the
p.000025: period of validity of the certificate issued under section 37(2).
p.000025: (4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is
p.000025: specified in the certificate of authority and the fundholder may make payments accordingly.
p.000025: (5) The supervisory body may at any time after it has issued a certificate of authority, revoke it
p.000025: and if it does so it shall notify the fundholder of the revocation.
p.000025:
p.000025: 26 Adults with Incapacity (Scotland) Act 2000
p.000025: (asp 4) Part 4—Management of residents’ finances
p.000025:
p.000025:
p.000025: 43 Statement of resident’s affairs
p.000025: (1) In this section, “resident” means a resident of an authorised establishment whose affairs are being managed in
p.000025: accordance with the provisions of this Part and “statement” means a statement of the affairs of the resident.
p.000025: (2) Where a resident ceases to be incapable of managing his affairs, the managers of the establishment
...
p.000035: (2) Where it appears to the local authority that—
p.000035: (a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and
p.000035: (b) no application has been made or is likely to be made for an order under this section; and
p.000035: (c) a guardianship order is necessary for the protection of the property, financial affairs or personal
p.000035: welfare of the adult,
p.000035: they shall apply under this section for an order.
p.000035: (3) There shall be lodged in court along with an application under this section—
p.000035: (a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days
p.000035: before the lodging of the application by at least two medical practitioners one of whom, in a case where the
p.000035: incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of
p.000035: section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;
p.000035:
p.000035: 36 Adults with Incapacity (Scotland) Act 2000
p.000035: (asp 4) Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (b) where the application relates to the personal welfare of the adult, a report, in prescribed form,
p.000035: from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate,
p.000035: from the chief social work officer), containing his opinion as to—
p.000035: (i) the general appropriateness of the order sought, based on an interview and assessment of the adult carried
p.000035: out not more than 30 days before the lodging of the application; and
p.000035: (ii) the suitability of the individual nominated in the application to be appointed guardian;
p.000035: and
p.000035: (c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
p.000035: the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as
p.000035: the case may be, the mental health officer, within 21 days of the date of the notice.
p.000035: (5) The sheriff may, on an application being made to him, at any time before the disposal of the application made
p.000035: under this section, make an order for the appointment of an interim guardian.
p.000035: (6) The appointment of an interim guardian in pursuance of this section shall, unless recalled earlier,
p.000035: cease to have effect—
p.000035: (a) on the appointment of a guardian under section 58; or
p.000035: (b) at the end of the period of 3 months from the date of appointment, whichever is the earlier.
p.000035:
p.000035: 58 Disposal of application
p.000035: (1) Where the sheriff is satisfied in considering an application under section 57 that—
p.000035: (a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000035: property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
p.000035: (b) no other means provided by or under this Act would be sufficient to enable the adult’s interests in his
p.000035: property, financial affairs or personal welfare to be safeguarded or promoted,
p.000035: he may grant the application.
p.000035: (2) In considering an application under section 57, the sheriff shall have regard to any intervention
p.000035: order or guardianship order which may have been previously made in relation to the adult, and to any order
p.000035: varying, or ancillary to, such an order.
...
p.000037: except where—
p.000037: (a) the individual is unable to find caution; but
p.000037: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian, require an individual
p.000037: appointed as guardian to find caution.
p.000037: (7) Where the sheriff makes a guardianship order the sheriff clerk shall forthwith send a copy of the
p.000037: interlocutor containing the order to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv);
p.000037: (b) when satisfied that the guardian has found caution if so required, issue a certificate of appointment
p.000037: to the guardian;
p.000037: (c) notify the adult of the appointment of the guardian; and
p.000037: (d) notify the local authority and (in a case where the incapacity of the adult is by reason of, or
p.000037: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000037: factors which include it) the Mental Welfare Commission of the terms of the interlocutor.
p.000037:
p.000037: 59 Who may be appointed as guardian
p.000037: (1) The sheriff may appoint as guardian—
p.000037: (a) any individual whom he considers to be suitable for appointment and who has consented to being
p.000037: appointed;
p.000037: (b) where the guardianship order is to relate only to the personal welfare of the adult, the chief social work
p.000037: officer of the local authority.
p.000037: (2) Where the guardianship order is to relate to the property and financial affairs and to the personal welfare
p.000037: of the adult and joint guardians are to be appointed, the chief social work officer of the local authority may
p.000037: be appointed guardian in relation only to the personal welfare of the adult.
p.000037: (3) The sheriff shall not appoint an individual as guardian to an adult unless he is satisfied that the individual
p.000037: is aware of—
p.000037: (a) the adult’s circumstances and condition and of the needs arising from such circumstances and
p.000037: condition; and
p.000037: (b) the functions of a guardian.
p.000037: (4) In determining if an individual is suitable for appointment as guardian, the sheriff shall have regard to—
p.000037: (a) the accessibility of the individual to the adult and to his primary carer;
p.000037:
p.000037: 38 Adults with Incapacity (Scotland) Act 2000
p.000037: (asp 4) Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (b) the ability of the individual to carry out the functions of guardian;
p.000037: (c) any likely conflict of interest between the adult and the individual;
p.000037: (d) any undue concentration of power which is likely to arise in the individual over the adult;
p.000037: (e) any adverse effects which the appointment of the individual would have on the interests of the adult;
p.000037: (f) such other matters as appear to him to be appropriate.
p.000037: (5) Paragraphs (c) and (d) of subsection (4) shall not be regarded as applying to an individual by
p.000037: reason only of his being a close relative of, or person residing with, the adult.
p.000037:
p.000037: 60 Renewal of guardianship order by sheriff
...
p.000041: (a) such restrictions as may be imposed by the court;
p.000041: (b) any management plan prepared under paragraph 1 of schedule 2; or
p.000041: (c) paragraph 6 of that schedule,
p.000041: be entitled to use the capital and income of the adult’s estate for the purpose of purchasing assets,
p.000041: services or accommodation so as to enhance the adult’s quality of life.
p.000041: (6) The guardian may arrange for some or all of his functions to be exercised by one or more persons
p.000041: acting on his behalf but shall not be entitled to surrender or transfer any part of them to another person.
p.000041:
p.000041: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000043: 43
p.000043: Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (7) The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or
p.000043: financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the
p.000043: guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect
p.000043: as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.
p.000043: (8) An interim guardian appointed under section 57(5) having powers relating to—
p.000043: (a) the property or financial affairs of an adult shall report to the Public Guardian;
p.000043: (b) the personal welfare of an adult shall report to the chief social work officer of the local authority,
p.000043: every month as to his exercise of those powers.
p.000043: (9) Where the chief social work officer of the local authority has been appointed guardian he shall, not later
p.000043: than 7 working days after his appointment, notify any person who received notification under section 58(7) of
p.000043: the appointment of the name of the officer responsible at any time for carrying out the functions and duties of
p.000043: guardian.
p.000043: (10) If, in relation to the appointment of the chief social work officer as guardian, the sheriff has directed that
p.000043: that intimation or notification of any application or other proceedings should not be given to the adult, the chief
p.000043: social work officer shall not notify the adult under subsection (9).
p.000043: (11) The Scottish Ministers may by regulations define the scope of the powers which may be conferred on a guardian
p.000043: under subsection (1) and the conditions under which they shall be exercised.
p.000043: (12) Schedule 2 (which makes provision as to the guardian’s management of the estate of an adult) has effect.
p.000043:
p.000043: 65 Records: guardians
p.000043: A guardian shall keep records of the exercise of his powers.
p.000043:
p.000043: 66 Gifts
p.000043: (1) A guardian having powers relating to the property or financial affairs of an adult may make a gift out of the
p.000043: adult’s estate only if authorised to do so by the Public Guardian.
p.000043: (2) Authorisation by the Public Guardian under subsection (1) may be given generally, or in respect of a particular
p.000043: gift.
p.000043: (3) On receipt of an application in the prescribed form for an authorisation to make a gift, the Public Guardian
p.000043: shall, subject to subsection (4), intimate the application to the adult, his nearest relative, his primary carer
p.000043: and any other person who the Public Guardian considers has an interest in the application and advise
p.000043: them of the prescribed period within which they may object to the granting of the application; and he shall not
p.000043: grant the application without affording to any objector an opportunity of being heard.
p.000043: (4) Where the Public Guardian is of the opinion that the value of the gift is such that intimation
p.000043: is not necessary, he may dispense with intimation.
p.000043: (5) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application.
p.000043:
...
p.000043: (6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith
p.000043: shall not be invalid on the ground only that—
p.000043: (a) the guardian acted outwith the scope of his authority; or
p.000043:
p.000043: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000045: 45
p.000045: Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act,
p.000045: or by the sheriff or by the Public Guardian; or
p.000045: (c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
p.000045: (7) In subsections (3) and (4) any reference to a guardian shall include a reference to a guardian
p.000045: (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an
p.000045: adult during his incapacity, if the guardianship is recognised by the law of Scotland.
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
p.000045: (b) who is the chief social work officer of a local authority, includes payment for items and services
p.000045: only if they would not normally be provided free of charge by the local authority to a person who is in similar
p.000045: circumstances but who does not have a guardian.
p.000045: (3) The local authority shall, in relation to the cost of any application by them for appointment of
p.000045: their chief social work officer as guardian or of any subsequent application by that officer while acting as
p.000045: guardian—
p.000045: (a) where the application relates to the personal welfare of the adult, meet such cost;
p.000045: (b) where the application relates to the property or financial affairs of the adult, be entitled to recover
p.000045: such cost from the estate of the adult,
p.000045: and where the application relates to the personal welfare and to the property or financial affairs of the adult the
p.000045: sheriff shall, in determining the application, apportion the cost as he thinks fit.
p.000045: (4) Remuneration shall be payable out of the adult’s estate—
p.000045: (a) in respect of the exercise of functions relating to the personal welfare of the adult, only in a case where
p.000045: special cause is shown;
p.000045: (b) in respect of the exercise of functions relating to the property or financial affairs of the adult, unless
p.000045: the sheriff directs otherwise in the order appointing the guardian,
p.000045: but shall not be payable to a local authority in respect of the exercise by their chief social work
p.000045: officer of functions relating to the personal welfare of the adult.
p.000045: (5) In determining whether or not to make a direction under subsection (4)(b), the sheriff shall take into account
p.000045: the value of the estate and the likely difficulty of managing it.
p.000045: (6) Any remuneration payable to the guardian and the amount of outlays to be allowed under subsection
p.000045: (1) shall be fixed by the Public Guardian—
p.000045: (a) in a case where the guardian is required to submit accounts, when the guardian’s accounts for that period are
p.000045: audited;
p.000045:
p.000045: 46 Adults with Incapacity (Scotland) Act 2000
p.000045: (asp 4) Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) in any other case, on an application by the guardian,
p.000045: and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the
p.000045: estate.
p.000045: (7) The Public Guardian may allow payments to account to be made by way of remuneration
p.000045: during the accounting period if it would be unreasonable to expect the guardian to wait for payment until
p.000045: the end of an accounting period.
p.000045: (8) A decision by the Public Guardian—
p.000045: (a) under subsection (6) as to the remuneration payable and the outlays allowable to the guardian;
p.000045: (b) under subsection (7) as to payments to account to the guardian may be appealed to the sheriff, whose decision
p.000045: shall be final.
p.000045:
p.000045: 69 Forfeiture of guardian’s remuneration
...
p.000049: (c) to refuse to remit an application to the sheriff under subsection (5) may be appealed to the sheriff, whose
p.000049: decision shall be final.
p.000049:
p.000049: 73 Recall of powers of guardian
p.000049: (1) The Public Guardian, at his own instance or on an application by any person (including the adult himself)
p.000049: claiming an interest in the property and financial affairs of an adult in respect of whom a guardian has been
p.000049: appointed, may recall the powers of a guardian relating to the property or financial affairs of the adult if it
p.000049: appears to him that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his property and financial affairs can be satisfactorily safeguarded or promoted
p.000049: otherwise than by guardianship.
p.000049: (2) Where the Public Guardian recalls the powers of a guardian under subsection (1) he shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult, the guardian and the local authority.
p.000049: (3) The Mental Welfare Commission or the local authority in whose area an adult in respect of whom a guardian has
p.000049: been appointed habitually resides (other than a local authority whose chief social work officer has been appointed
p.000049: guardian), at their own instance or on an application by any person (including the adult himself) claiming an interest
p.000049: in the personal welfare of the adult, may recall the powers of a guardian relating to the personal
p.000049: welfare of the adult if it appears to them that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than
p.000049: by guardianship.
p.000049: (4) Where the Mental Welfare Commission or the local authority recall the powers of a guardian under
p.000049: subsection (3) they shall notify the other and the Public Guardian who shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult and the guardian.
p.000049: (5) The Public Guardian, Mental Welfare Commission or local authority, as the case may be, shall—
p.000049: (a) where acting on an application, on receipt of the application in the prescribed form intimate it;
p.000049: (b) where acting at his or their own instance, intimate the intention to recall the powers of a
p.000049: guardian,
p.000049:
...
p.000051: (b) if satisfied that the substitute guardian has found caution if so required, issue him with a new certificate of
p.000051: appointment;
p.000051: (c) issue a remaining joint guardian with a new certificate of appointment;
p.000051: (d) notify the adult.
p.000051:
p.000051: 52 Adults with Incapacity (Scotland) Act 2000
p.000051: (asp 4) Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (4) A substitute guardian who has not subsequently become guardian by virtue of section 63 may resign by giving
p.000051: notice in writing to the Public Guardian and the local authority and (in the case mentioned in subsection (1))
p.000051: the Mental Welfare Commission and the resignation shall take effect on the date of receipt of the notice by the
p.000051: Public Guardian; and on its becoming effective, the Public Guardian shall—
p.000051: (a) notify the guardian and the adult; and
p.000051: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000051: (5) A guardian—
p.000051: (a) who has no joint guardian; or
p.000051: (b) in respect of whom no substitute guardian has been appointed; or
p.000051: (c) being a joint guardian or guardian in respect of whom a substitute has been appointed who cannot
p.000051: effectively resign by reason of subsection (2)(a)(i) or (ii),
p.000051: shall not resign until a replacement guardian has been appointed under section 71.
p.000051:
p.000051: 76 Change of habitual residence
p.000051: (1) Where the guardian is the chief social work officer of the local authority and the adult changes his place of
p.000051: habitual residence to the area of another local authority, the chief social work officer of the first mentioned
p.000051: local authority shall notify the chief social work officer of the second mentioned local authority (the
p.000051: “receiving authority”) who shall become guardian on receipt of the notification and shall within 7 days
p.000051: of that receipt notify the Public Guardian and (in a case where the incapacity of the adult is by reason of, or
p.000051: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000051: factors which include it) the Mental Welfare Commission.
p.000051: (2) The Public Guardian shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv) and issue a
p.000051: certificate of appointment to the new guardian; and
p.000051: (b) subject to subsection (4), notify the adult within 7 days of receipt of the notification from the
p.000051: receiving authority.
p.000051: (3) Subject to subsection (4), the chief social work officer of the receiving authority shall, within 7 working
p.000051: days of receipt of the notification, notify any person who received notification under section 58(7)
p.000051: of the appointment of the name of the officer responsible at any time for carrying out the functions and
p.000051: duties of guardian.
p.000051: (4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
...
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
p.000057: of that Act;
p.000057: “office holder”, in relation to a guardian, means the chief social work officer of the local authority;
p.000057: “person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public
p.000057: Guardian;
p.000057: “power of attorney” includes a factory and commission;
p.000057: “prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public
p.000057: Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;
p.000057: “primary carer” in relation to an adult, means the person or organisation primarily engaged in caring for him;
p.000057: “Public Guardian” shall be construed in accordance with section 6;
p.000057: “State hospital” shall be construed in accordance with section 102 of the National Health Service (Scotland) Act 1978
p.000057: (c.29);
p.000057: “substitute guardian” shall be construed in accordance with section 63; “welfare attorney” shall be construed in
p.000057: accordance with section 16; “withdrawer” shall be construed in accordance with section 26;
p.000057: “the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).
p.000057: (2) Where—
p.000057: (a) an adult has no spouse or has a spouse but subsection (3) applies; and
p.000057: (b) a person of the same sex as the adult—
p.000057:
p.000057: 58 Adults with Incapacity (Scotland) Act 2000
p.000057: (asp 4) Part 7—Miscellaneous
p.000057:
p.000057: (i) is and has been, for a period of not less than 6 months, living with the adult in a relationship which has the
...
p.000071: 6 (1) For the purposes of their application to persons who have become guardians by virtue of this schedule,
p.000071: the following provisions shall have effect as modified or disapplied by this paragraph.
p.000071: (2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed
p.000071: as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law
p.000071: or guardian under the 1984 Act, as the case may be.
p.000071: (3) Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was
p.000071: a curator bonis, tutor dative or tutor-at-law to that adult; and, for the purpose of that application, for the
p.000071: reference in section 60(1) to a period in respect of which a guardianship order has been made or
p.000071: renewed there shall be substituted a reference to the period of 5 years from the relevant date or (in the case of a
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
p.000071: they would have continued had he not become a guardian by virtue of this schedule to this Act.
p.000071: (5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall
p.000071: be construed as including references to the local authority.
p.000071: (6) Schedule 2 shall apply only—
p.000071: (a) in a case where; and
p.000071: (b) to the extent that,
p.000071: the Public Guardian has determined that it should apply.
p.000071: (7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make
p.000071: such a determination, may be appealed to the sheriff, whose decision shall be final.
p.000071: (8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by
p.000071: virtue of this schedule.
p.000071:
p.000071: 72 Adults with Incapacity (Scotland) Act 2000
p.000071: (asp 4) Schedule 5—Minor and consequential amendments
p.000071:
p.000071: Transitional Provisions
p.000071: 7 Until Part 6 comes into force—
p.000071: (a) the references in section 23(1)(c) to a guardian shall be omitted;
p.000071: (b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a
p.000071: reference to the appointment of a curator bonis or tutor- dative or tutor-at-law with powers relating to the
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
...
p.000073: Solicitors (Scotland) Act 1980 (c.46)
p.000073: 15 In section 18(1) of the Solicitors (Scotland) Act 1980—
p.000073: (a) in paragraph (a) “or becomes subject to guardianship” shall be repealed;
p.000073: (b) for paragraph (b) there shall be substituted—
p.000073: “(b) a guardian is appointed to a solicitor under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4);”.
p.000073: Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)
p.000073: 16 In group C of Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland)
p.000073: Act 1980 for paragraphs (b) and (c) there shall be substituted—
p.000073: “(b) persons for the time being subject to guardianship under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4).”.
p.000073: Mental Health (Scotland) Act 1984 (c.36)
p.000073: 17 (1) In section 3 of the Mental Health (Scotland) Act 1984—
p.000073: (a) in subsection (1) “guardianship or” shall be repealed;
p.000073: (b) in subsection (2) in paragraph (b) “or who are subject to guardianship” shall be repealed.
p.000073: (2) In section 5(2) of that Act “and the guardian of any person subject to guardianship under this Act” shall be
p.000073: repealed.
p.000073: (3) In section 19 of that Act—
p.000073:
p.000073: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000075: 75
p.000075: Schedule 5—Minor and consequential amendments
p.000075:
p.000075: (a) in subsection (1) for “either by the nearest relative of the patient or by a mental health officer” there shall
p.000075: be substituted “by the nearest relative of the patient, by a mental health officer, or by a guardian or welfare
p.000075: attorney of the patient who has powers to do so”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be,”;
p.000075: (c) in subsection (3) after “relative” in both places there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be”;
p.000075: (d) in subsection (4) after “patient” where second occurring there shall be inserted “or by a guardian or welfare
p.000075: attorney of the patient”;
p.000075: (e) in subsection (5)(b) after “relative” there shall be inserted “and any guardian or welfare attorney”.
p.000075: (4) In section 20(1)(a) of that Act for “or his nearest relative” there shall be substituted “, his nearest
p.000075: relative, guardian or welfare attorney, as the case may be”.
p.000075: (5) In section 21(2)(b) of that Act—
p.000075: (a) after “relative” where first occuring there shall be inserted “, guardian or welfare attorney, as the case may
p.000075: be”;
p.000075: (b) after “relative” where second and third occurring there shall be inserted “guardian or welfare attorney”.
p.000075: (6) In section 22(4)(c) of that Act after “relative” there shall be inserted “and any guardian or welfare
p.000075: attorney”.
p.000075: (7) In section 24 of that Act—
...
p.000079: section 58(1)(a) of that Act apply in relation to the offender;
p.000079: (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his
p.000079: personal welfare to be safeguarded or promoted,
p.000079: the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the
p.000079: guardianship of such local authority or of such other person approved by a local authority as may be specified in the
p.000079: order.”;
p.000079: (b) in subsections (2), (3) and (10) for “subsection (1)” there shall be substituted “subsection (1) or
p.000079: (1A)”;
p.000079: (c) in subsections (5) and (7) after “subsection (1)” there shall be inserted “or paragraph (a) of
p.000079: subsection (1A),”;
p.000079: (d) for subsection (6) there shall be substituted—
p.000079: “(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act
p.000079: referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
p.000079:
p.000079: 80 Adults with Incapacity (Scotland) Act 2000
p.000079: (asp 4) Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) on the report of a mental health officer (complying with any requirements imposed by
p.000079: section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the
p.000079: general appropriateness of the order sought, based on an interview and assessment of the person
p.000079: carried out not more than 30 days before it makes the order, that it is necessary in the interests of
p.000079: the personal welfare of the person that he should be placed under guardianship;
p.000079: (b) that any person nominated to be appointed a guardian is suitable to be so appointed;
p.000079: (c) that the authority or person is willing to receive that person into guardianship; and
p.000079: (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland)
p.000079: Act 2000 (asp 4), in force relating to the person.”;
p.000079: (e) at the end there shall be added—
p.000079: “(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this
p.000079: section.”.
p.000079: (3) After section 60 of that Act there shall be inserted—
p.000079: “60A Intervention orders
p.000079: The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section
p.000079: 57(2)(c) or 58(1A) of this Act, make an intervention order where it considers that it would be appropriate to do so.”.
p.000079: (4) In section 61 of that Act—
...
Social / Property Ownership
Searching for indicator home:
(return to top)
p.000023: 23
p.000023: Part 4—Management of residents’ finances
p.000023:
p.000023: (7) A certificate—
p.000023: (a) shall be reviewed where it appears to the managers of the authorised establishment, the
p.000023: medical practitioner who certifies under this section or any person having an interest in any of the resident’s
p.000023: affairs mentioned in section 39 that there has been any change in the condition or circumstances of the resident
p.000023: bearing on the resident’s incapacity; and
p.000023: (b) shall expire 3 years after it was issued.
p.000023: (8) If the managers of the authorised establishment consider that intimation to the resident under subsection (3)
p.000023: or any action under subsection (4) would be likely to pose a serious risk to the health of the resident they may apply
p.000023: to the supervisory body for a direction that they need not make the intimation or take the action.
p.000023: (9) The Scottish Ministers may prescribe the evidence which the supervisory body shall take into account
p.000023: in reaching a decision under subsection (8).
p.000023:
p.000023: 38 Financial procedures and controls in registered establishments
p.000023: (1) In section 1(3) of the Nursing Homes Registration (Scotland) Act 1938 (c.73) (“the 1938 Act”), after paragraph
p.000023: (d) there shall be inserted—
p.000023: “(e) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the home which the applicant will be required to manage.”.
p.000023: (2) In section 4(1)(a) of the 1938 Act, after sub-paragraph (ii) there shall be inserted “; and
p.000023: (iii) the financial procedures and controls relating to residents’ property.”.
p.000023: (3) In section 62(3) of the Social Work (Scotland) Act 1968 (c.49), after paragraph (c) there shall be inserted—
p.000023: “(d) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the establishment which the applicant will be required to
p.000023: manage.”.
p.000023: (4) In section 13(1) of the 1984 Act, after paragraph (a) there shall be inserted—
p.000023: “(aa) that the person proposing to carry on the establishment maintains financial procedures and controls
p.000023: adequate to ensure the safeguarding of any property of a resident of the hospital which that person will be
p.000023: required to manage.”.
p.000023:
p.000023: 39 Matters which may be managed
p.000023: (1) The matters which may be managed under this Part by the managers of an authorised establishment are—
p.000023: (a) claiming, receiving, holding and spending any pension, benefit, allowance or other payment other than
p.000023: under the Social Security Contributions and Benefits Act 1992 (c.4);
p.000023: (b) claiming, receiving, holding and spending any money to which a resident is entitled;
...
Searching for indicator property:
(return to top)
p.000001: PART 4
p.000001: MANAGEMENT OF RESIDENTS’ FINANCES
p.000001: 36 Registration for purposes of managing residents’ finances
p.000001: 37 Residents whose affairs may be managed
p.000001: 38 Financial procedures and controls in registered establishments
p.000001: 39 Matters which may be managed
p.000001: 40 Supervisory bodies
p.000001: 41 Duties and functions of managers of authorised establishment
p.000001: 42 Authorisation of named manager to withdraw from resident’s account
p.000001: 43 Statement of resident’s affairs
p.000001: 44 Resident ceasing to be resident of authorised establishment
p.000001: 45 Appeal, revocation etc.
p.000001: 46 Disapplication of Part 4
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: iii
p.000001:
p.000001: PART 5
p.000001: MEDICAL TREATMENT AND RESEARCH
p.000001: 47 Authority of persons responsible for medical treatment
p.000001: 48 Exceptions to authority to treat
p.000001: 49 Medical treatment where there is an application for intervention or guardianship order
p.000001: 50 Medical treatment where guardian etc. has been appointed
p.000001: 51 Authority for research
p.000001: 52 Appeal against decision as to medical treatment
p.000001:
p.000001: PART 6
p.000001: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000001: Intervention orders
p.000001: 53 Intervention orders
p.000001: 54 Records: intervention orders
p.000001: 55 Notification of change of address
p.000001: 56 Registration of intervention order relating to heritable property
p.000001:
p.000001: Guardianship orders
p.000001: 57 Application for guardianship order
p.000001: 58 Disposal of application
p.000001: 59 Who may be appointed as guardian
p.000001: 60 Renewal of guardianship order by sheriff
p.000001: 61 Registration of guardianship order relating to heritable property
p.000001:
p.000001: Joint and substitute guardians
p.000001: 62 Joint guardians
p.000001: 63 Substitute guardian
p.000001:
p.000001: Functions etc. of guardian
p.000001: 64 Functions and duties of guardian
p.000001: 65 Records: guardians
p.000001: 66 Gifts
p.000001: 67 Effect of appointment and transactions of guardian
p.000001: 68 Reimbursement and remuneration of guardian
p.000001: 69 Forfeiture of guardian’s remuneration
p.000001: 70 Non-compliance with decisions of guardian with welfare powers
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
p.000001: (1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in
p.000001: the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any
p.000001: proceedings under this Act for or in connection with an adult.
p.000001: (2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or
p.000001: effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot
p.000001: reasonably be achieved without the intervention.
p.000001: (3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention
p.000001: shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of
p.000001: the intervention.
p.000001: (4) In determining if an intervention is to be made and, if so, what intervention is to be made,
p.000001: account shall be taken of—
p.000001: (a) the present and past wishes and feelings of the adult so far as they can be ascertained by any
p.000001: means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise)
p.000001: appropriate to the adult;
p.000001: (b) the views of the nearest relative and the primary carer of the adult, in so far as it is reasonable and
p.000001: practicable to do so;
p.000001: (c) the views of—
p.000001:
p.000001: 2 Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4) Part 1—General
p.000001:
p.000001: (i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed
p.000001: intervention; and
p.000001: (ii) any person whom the sheriff has directed to be consulted, in so far as it is reasonable and practicable to do
p.000001: so; and
p.000001: (d) the views of any other person appearing to the person responsible for authorising or effecting the intervention
p.000001: to have an interest in the welfare of the adult or in the proposed intervention, where these views have been
p.000001: made known to the person responsible, in so far as it is reasonable and practicable to do so.
p.000001: (5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising
p.000001: functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is
p.000001: reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his
p.000001: property, financial affairs or personal welfare, as the case may be, and to develop new such skills.
p.000001: (6) For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has
p.000001: attained the age of 16 years; “incapable” means incapable of—
p.000001: (a) acting; or
p.000001: (b) making decisions; or
p.000001: (c) communicating decisions; or
p.000001: (d) understanding decisions; or
p.000001: (e) retaining the memory of decisions,
p.000001: as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate
p.000001: because of physical disability; but a person shall not fall within this definition by reason only of a lack or
p.000001: deficiency in a faculty of communication if that lack or deficiency can be made good by human or
p.000001: mechanical aid (whether of an interpretative nature or otherwise); and
p.000001: “incapacity” shall be construed accordingly.
p.000001: (7) In subsection (4)(c)(i) any reference to—
p.000001: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000001: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000001: guardianship is recognised by the law of Scotland;
p.000001: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000001: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000001: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000001: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000001: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000001: having effect during the granter’s incapacity.
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000003: 3
p.000003: Part 1—General
p.000003:
p.000003: Judicial proceedings
p.000003: 2 Applications and other proceedings and appeals
p.000003: (1) This section shall apply for the purposes of any application which may be made to and any other proceedings
p.000003: before the sheriff under this Act.
p.000003: (2) An application to the sheriff under this Act shall be made by summary application.
p.000003: (3) Unless otherwise expressly provided for, any decision of the sheriff at first instance in any application to,
p.000003: or in any other proceedings before, him under this Act may be appealed to the sheriff principal, and
p.000003: the decision upon such appeal of the sheriff principal may be appealed, with the leave of the sheriff
p.000003: principal, to the Court of Session.
p.000003: (4) Rules made under section 32 of the Sheriff Courts (Scotland) Act 1971 (c.58) may make provision as to the
p.000003: evidence which the sheriff shall take into account when deciding whether to give a direction under section
p.000003: 11(1).
p.000003:
p.000003: 3 Powers of sheriff
p.000003: (1) In an application or any other proceedings under this Act, the sheriff may make such consequential or
p.000003: ancillary order, provision or direction as he considers appropriate.
p.000003: (2) Without prejudice to the generality of subsection (1) or to any other powers conferred by this Act, the sheriff
p.000003: may—
p.000003: (a) make any order granted by him subject to such conditions and restrictions as appear to him to be
p.000003: appropriate;
p.000003: (b) order that any reports relating to the person who is the subject of the application or proceedings be lodged with
p.000003: the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;
p.000003: (c) make such further inquiry or call for such further information as appears to him to be appropriate;
p.000003: (d) make such interim order as appears to him to be appropriate pending the disposal of the application or
p.000003: proceedings.
p.000003: (3) On an application by any person (including the adult himself) claiming an interest in the property, financial
p.000003: affairs or personal welfare of an adult, the sheriff may give such directions to any person exercising—
p.000003: (a) functions conferred by this Act; or
p.000003: (b) functions of a like nature conferred by the law of any country,
p.000003: as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him
p.000003: to be appropriate.
p.000003: (4) In an application or any other proceedings under this Act, the sheriff—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the application or proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the person
p.000003: who is the subject of the application or proceedings may, if he thinks fit, appoint a person to act for the purpose
p.000003: specified in paragraph (a).
p.000003:
p.000003: 4 Adults with Incapacity (Scotland) Act 2000
p.000003: (asp 4) Part 1—General
p.000003:
p.000003: (5) Safeguarding the interests of a person shall, for the purposes of subsection (4), include conveying his views
p.000003: so far as they are ascertainable to the sheriff; but if the sheriff considers that it is inappropriate
p.000003: that a person appointed to safeguard the interests of another under this section should also convey that
p.000003: other’s views to the sheriff, the sheriff may appoint another person for that latter purpose only.
p.000003: (6) The sheriff may, on an application by—
p.000003: (a) the person authorised under the order;
...
p.000003: at the time of making the application.
p.000003:
p.000003: 5 Safeguarding of interests in Court of Session appeals or proceedings
p.000003: (1) In determining any appeal or in any other proceedings under this Act the Court of Session—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the appeal or other proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the second
p.000003: mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).
p.000003:
p.000003: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000005: 5
p.000005: Part 1—General
p.000005:
p.000005: (2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views
p.000005: so far as they are ascertainable to the court; but if the court considers that it is inappropriate
p.000005: that a person appointed to safeguard the interests of another under this section should also convey that
p.000005: other’s views to the court, the court may appoint another person for that latter purpose only.
p.000005:
p.000005: The Public Guardian
p.000005: 6 The Public Guardian and his functions
p.000005: (1) The Accountant of Court shall be the Public Guardian.
p.000005: (2) The Public Guardian shall have the following general functions under this Act—
p.000005: (a) to supervise any guardian or any person who is authorised under an intervention order in the exercise of his
p.000005: functions relating to the property or financial affairs of the adult;
p.000005: (b) to establish, maintain and make available during normal office hours for inspection by
p.000005: members of the public on payment of the prescribed fee, separate registers of—
p.000005: (i) all documents relating to continuing powers of attorney governed by the law of Scotland;
p.000005: (ii) all documents relating to welfare powers of attorney governed by the law of Scotland;
p.000005: (iii) all authorisations to intromit with funds under Part 3;
p.000005: (iv) all documents relating to guardianship orders under Part 6;
p.000005: (v) all documents relating to intervention orders under Part 6,
p.000005: in which he shall enter any matter which he is required to enter under this Act and any other matter of which he
p.000005: becomes aware relating to the existence or scope of the power, authorisation or order as the case may be;
p.000005: (c) to receive and investigate any complaints regarding the exercise of functions relating to the property
p.000005: or financial affairs of an adult made—
p.000005: (i) in relation to continuing attorneys;
p.000005: (ii) concerning intromissions with funds under Part 3;
p.000005: (iii) in relation to guardians or persons authorised under intervention orders;
p.000005: (d) to investigate any circumstances made known to him in which the property or financial affairs of an
p.000005: adult seem to him to be at risk;
p.000005: (e) to provide, when requested to do so, a guardian, a continuing attorney, a withdrawer or a person
p.000005: authorised under an intervention order with information and advice about the performance of functions
p.000005: relating to property or financial affairs under this Act;
p.000005: (f) to consult the Mental Welfare Commission and any local authority on cases or matters relating to the
p.000005: exercise of functions under this Act in which there is, or appears to be, a common interest.
p.000005: (3) In subsection (2)(c) any reference to—
p.000005:
p.000005: 6 Adults with Incapacity (Scotland) Act 2000
p.000005: (asp 4) Part 1—General
p.000005:
p.000005: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000005: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000005: guardianship is recognised by the law of Scotland;
p.000005: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000005: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000005: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000005:
p.000005: 7 The Public Guardian: further provision
p.000005: (1) The Scottish Ministers may prescribe—
p.000005: (a) the form and content of the registers to be established and maintained under section 6(2)(b) and the
p.000005: manner and medium in which they are to be established and maintained;
p.000005: (b) the form and content of any certificate which the Public Guardian is empowered to issue under this Act;
p.000005: (c) the forms and procedure for the purposes of any application required or permitted to be made under this Act to
p.000005: the Public Guardian in relation to any matter;
p.000005: (d) the evidence which the Public Guardian shall take into account when deciding under section 11(2)
p.000005: whether to dispense with intimation or notification to the adult.
p.000005: (2) The Public Guardian may charge the prescribed fee for anything done by him in connection with any
p.000005: of his functions under this Act and he shall not be obliged to act until such fee is paid.
p.000005: (3) Any certificate which the Public Guardian issues under this Act shall, for the purposes of any proceedings, be
p.000005: conclusive evidence of the matters contained in it.
p.000005:
p.000005: Expenses in court proceedings
p.000005: 8 Expenses in court proceedings
p.000005: (1) Where in any court proceedings (other than, in the case of a local authority, an application
...
p.000007: (b) to visit the adult as often as they think appropriate and bring to the attention of the Health Board for the area
p.000007: in which the adult resides, or the local authority, or any other body any matter relating to the personal
p.000007: welfare of the adult which they consider ought to be brought to their attention;
p.000007: (c) to consult the Public Guardian and any local authority on cases or matters relating to the exercise of functions
p.000007: under this Act in which there is, or appears to be, a common interest;
p.000007: (d) where they are not satisfied with any investigation made by a local authority into a complaint made under section
p.000007: 10(1)(c), or where the local authority have failed to investigate the complaint, to receive and investigate any
p.000007: complaints relating to the exercise of functions relating to the personal welfare of the adult made—
p.000007: (i) in relation to welfare attorneys;
p.000007: (ii) in relation to guardians or persons authorised under intervention orders;
p.000007: (e) to investigate any circumstances made known to them in which the personal welfare of the adult seems
p.000007: to them to be at risk;
p.000007: (f) to investigate any circumstances made known to them in which the property of the adult may, by reason of the
p.000007: mental disorder of the adult, be exposed to a risk of loss or damage;
p.000007: (g) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do
p.000007: so, with information and advice in connection with the performance of his functions in relation to personal welfare
p.000007: under this Act.
p.000007: (2) A guardian or welfare attorney of such an adult or a person authorised under an intervention
p.000007: order in relation to such an adult or the local authority shall afford the Mental Welfare Commission
p.000007: all facilities necessary to enable them to carry out their functions in respect of the adult.
p.000007: (3) In subsection (1)(d) any reference to—
p.000007: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000007: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000007: guardianship is recognised by the law of Scotland;
p.000007: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000007: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
...
p.000007: or notification of any interlocutor relating to such application or other proceedings, would be given to an adult and
p.000007: the court considers that the intimation or notification would be likely to pose a serious risk to the health of the
p.000007: adult the court may direct that such intimation or notification shall not be given.
p.000007:
p.000007: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000009: 9
p.000009: Part 1—General
p.000009: (2) Where, apart from this subsection and subsection (1), any intimation or notification to him under this Act
p.000009: would be given by the Public Guardian to an adult and the Public Guardian considers that the intimation or notification
p.000009: would be likely to pose a serious risk to the health of the adult the Public Guardian shall not give the
p.000009: intimation or notification.
p.000009: Investigations
p.000009: 12 Investigations
p.000009: (1) In consequence of any investigation carried out under—
p.000009: (a) section 6(2)(c) or (d) by the Public Guardian;
p.000009: (b) section 9(1)(d) or (e) by the Mental Welfare Commission; or
p.000009: (c) section 10(1)(c) or (d) by a local authority,
p.000009: the Public Guardian, Mental Welfare Commission or local authority, as the case may be, may take such steps, including
p.000009: the making of an application to the sheriff, as seem to him or them to be necessary to safeguard the property,
p.000009: financial affairs or personal welfare, as the case may be, of the adult.
p.000009: (2) For the purposes of any investigation mentioned in subsection (1), the Public Guardian, Mental Welfare
p.000009: Commission and local authority shall provide each other with such information and assistance as may be
p.000009: necessary to facilitate the investigation.
p.000009:
p.000009: Codes of practice
p.000009: 13 Codes of practice
p.000009: (1) The Scottish Ministers shall prepare, or cause to be prepared for their approval, and from time
p.000009: to time revise, or cause to be revised for their approval, codes of practice containing guidance as to the
p.000009: exercise by—
p.000009: (a) local authorities and their chief social work officers and mental health officers;
p.000009: (b) continuing and welfare attorneys;
p.000009: (c) persons authorised under intervention orders;
p.000009: (d) guardians;
p.000009: (e) withdrawers;
p.000009: (f) managers of authorised establishments;
p.000009: (g) supervisory bodies;
p.000009: (h) persons authorised to carry out medical treatment or research under Part 5,
p.000009: of their functions under this Act and as to such other matters arising out of or connected with this Act as the
p.000009: Scottish Ministers consider appropriate.
p.000009: (2) Before preparing or approving any code of practice under this Act or making or approving any
p.000009: alteration in it the Scottish Ministers shall consult such bodies as appear to them to be concerned.
p.000009: (3) The Scottish Ministers shall lay copies of any such code and of any alteration in it before the
p.000009: Parliament.
p.000009:
p.000009: 10 Adults with Incapacity (Scotland) Act 2000
p.000009: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000009:
p.000009: (4) The Scottish Ministers shall publish every code of practice made under this Act as for the time being in force.
p.000009:
p.000009: Appeal against decision as to incapacity
p.000009: 14 Appeal against decision as to incapacity
p.000009: A decision taken for the purposes of this Act, other than by the sheriff, as to the incapacity of an
p.000009: adult may be appealed by—
p.000009: (a) the adult; or
p.000009: (b) any person claiming an interest in the adult’s property, financial affairs or personal welfare
p.000009: relating to the purpose for which the decision was taken,
p.000009: to the sheriff or, where the decision was taken by the sheriff, to the sheriff principal and thence, with the leave of
p.000009: the sheriff principal, to the Court of Session.
p.000009:
p.000009:
p.000009: PART 2
p.000009: CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY
p.000009: 15 Creation of continuing power of attorney
p.000009: (1) Where an individual grants a power of attorney relating to his property or financial affairs in
p.000009: accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of
p.000009: law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions
p.000009: about the matter to which the power of attorney relates.
p.000009: (2) In this Act a power of attorney granted under subsection (1) is referred to as a “continuing
p.000009: power of attorney” and a person on whom such power is conferred is referred to as a “continuing attorney”.
p.000009: (3) A continuing power of attorney shall be valid only if it is expressed in a written document
p.000009: which—
p.000009: (a) is subscribed by the granter;
p.000009: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a continuing
p.000009: power;
p.000009: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000009: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000009: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000009: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the continuing
p.000009: power of attorney is granted the granter understands its nature and extent;
p.000009: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000009: the granting of the power.
p.000009: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
...
p.000011: in that case the Public Guardian shall not register it until he is satisfied that the specified event has occurred.
p.000011: (4) A copy of a document conferring a continuing or welfare power of attorney authenticated
p.000011: by the Public Guardian shall be accepted for all purposes as sufficient evidence of the contents of the
p.000011: original and of any matter relating thereto appearing in the copy.
p.000011: (5) The Public Guardian shall—
p.000011: (a) on the registration of a document conferring a continuing or welfare power of attorney, send a copy
p.000011: of it to the granter; and
p.000011: (b) where the document conferring the continuing or welfare power of attorney so requires, send a copy of
p.000011: it to not more than two specified individuals or holders of specified offices or positions.
p.000011: (6) A decision of the Public Guardian under subsection (2) as to whether or not a person is prepared to act or
p.000011: under subsection (3) as to whether or not the specified event has occurred may be appealed to the sheriff,
p.000011: whose decision shall be final.
p.000011:
p.000011: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000013: 13
p.000013: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: 20 Powers of sheriff
p.000013: (1) An application for an order under subsection (2) may be made to the sheriff by any person
p.000013: claiming an interest in the property, financial affairs or personal welfare of the granter of a continuing or welfare
p.000013: power of attorney.
p.000013: (2) Where, on an application being made under subsection (1), the sheriff is satisfied that the granter is
p.000013: incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000013: property, financial affairs or personal welfare insofar as the power of attorney relates to them, and that it is
p.000013: necessary to safeguard or promote these interests, he may make an order—
p.000013: (a) ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian to
p.000013: such extent as may be specified in the order;
p.000013: (b) ordaining the continuing attorney to submit accounts in respect of any period specified in the order
p.000013: for audit to the Public Guardian;
p.000013: (c) ordaining that the welfare attorney shall be subject to the supervision of the local authority to such extent as
p.000013: may be specified in the order;
p.000013: (d) ordaining the welfare attorney to give a report to him as to the manner in which the welfare attorney has
p.000013: exercised his powers during any period specified in the order;
p.000013: (e) revoking—
p.000013: (i) any of the powers granted by the continuing or welfare power of attorney; or
p.000013: (ii) the appointment of an attorney.
p.000013: (3) Where the sheriff makes an order under this section the sheriff clerk shall send a copy of the interlocutor
p.000013: containing the order to the Public Guardian who shall—
p.000013: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the
p.000013: case may be;
p.000013: (b) notify—
p.000013: (i) the granter;
p.000013: (ii) the continuing or welfare attorney;
p.000013: (iii) where it is the welfare attorney who is notified, the local authority and (in a case where the incapacity of the
p.000013: granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission;
p.000013: (iv) where the sheriff makes an order under subsection (2)(c), the local authority.
p.000013: (4) A decision of the sheriff under subsection (2)(a) to (d) shall be final.
p.000013: (5) In this section any reference to—
p.000013: (a) a continuing power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s
p.000013: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000013:
p.000013: 14 Adults with Incapacity (Scotland) Act 2000
p.000013: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: (b) a welfare power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s personal
p.000013: welfare and having effect during the granter’s incapacity,
p.000013: and “continuing attorney” and “welfare attorney” shall be construed accordingly.
p.000013:
p.000013: 21 Records: attorneys
p.000013: A continuing or welfare attorney shall keep records of the exercise of his powers.
p.000013:
p.000013: 22 Notification to Public Guardian
p.000013: (1) After a document conferring a continuing or welfare power of attorney has been registered under
p.000013: section 19, the attorney shall notify the Public Guardian—
p.000013: (a) of any change in his address;
p.000013: (b) of any change in the address of the granter of the power of attorney;
p.000013: (c) of the death of the granter of the power of attorney; or
...
p.000015: (4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a
p.000015: substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if
p.000015: evidence that—
p.000015: (a) the remaining joint attorney is willing to continue to act; or
p.000015: (b) the substitute attorney is willing to act, accompanies the notice.
p.000015:
p.000015: 24 Termination of continuing or welfare power of attorney
p.000015: (1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall,
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
p.000015: fundholder and shall not be made if there is an existing authority to intromit under this Part.
p.000015:
p.000015: 26 Application for authority to intromit
...
p.000019: force until the appeal is determined.
p.000019: (7) The authority of a withdrawer to withdraw funds under section 26 shall come to an end—
p.000019: (a) on the appointment of a guardian with powers relating to the funds or account in question;
p.000019: (b) on the granting of an intervention order relating to the funds or account in question; or
p.000019: (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in
p.000019: question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to
p.000019: an end of a withdrawer’s authority under this subsection.
p.000019: (8) In subsection (7) any reference to—
p.000019:
p.000019: 20 Adults with Incapacity (Scotland) Act 2000
p.000019: (asp 4) Part 3—Accounts and funds
p.000019:
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: 32 Joint accounts
p.000019: Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes
p.000019: incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other
p.000019: joint account holder may continue to operate the account unless—
p.000019: (a) the terms of the account provide otherwise; or
p.000019: (b) he is barred by an order of any court from so doing.
p.000019:
p.000019: 33 Transfer of funds
p.000019: (1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for
p.000019: authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds
p.000019: from that account to another specified account.
p.000019: (2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of
p.000019: that transfer; and the account to which funds are transferred may be specified as to kind of account.
p.000019: (3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be
p.000019: final.
p.000019:
p.000019: 34 Disapplication of Part 3
p.000019: (1) This Part shall not apply in the case of an adult in relation to whom—
p.000019: (a) there is a guardian or continuing attorney with powers relating to the funds or account in question;
p.000019: or
p.000019: (b) an intervention order has been granted relating to the funds or account in question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000021: 21
p.000021: Part 4—Management of residents’ finances
p.000021:
p.000021: PART 4
p.000021: MANAGEMENT OF RESIDENTS’ FINANCES
p.000021: 35 Application of Part 4
p.000021: (1) Subject to subsection (3), this Part applies to the management of the matters set out in section 39 relating to
p.000021: any resident of any of the following establishments—
p.000021: (a) a hospital or other premises mentioned in section 10(3)(a) of the Nursing Homes Registration (Scotland) Act 1938
p.000021: (c.73) (“the 1938 Act”);
p.000021: (b) a nursing home registered under the 1938 Act;
p.000021: (c) a hospital or similar institution which, but for section 6 of that Act, would require to be registered under the
p.000021: 1938 Act;
p.000021: (d) an establishment in respect of which there is registration under section 61B, 62 or 63 of the Social Work
p.000021: (Scotland) Act 1968 (c.49) (“the 1968 Act”);
p.000021: (e) an establishment in relation to which, but for the exception provided by section 61(1A)(a)
p.000021: of the 1968 Act, there would require to be registration under section 62 or 63 of the 1968 Act;
p.000021: (f) a private hospital registered under Part IV of the Mental Health (Scotland) Act 1984 (c.36) (“the
p.000021: 1984 Act”);
p.000021: (g) a State hospital.
p.000021: (2) In this Part establishments mentioned in paragraph (b), (ca), (cb), (d) or (f) of subsection
p.000021: (1) are referred to as “registered establishments”, all other establishments mentioned in subsection (1) are
...
p.000021:
p.000021: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000023: 23
p.000023: Part 4—Management of residents’ finances
p.000023:
p.000023: (7) A certificate—
p.000023: (a) shall be reviewed where it appears to the managers of the authorised establishment, the
p.000023: medical practitioner who certifies under this section or any person having an interest in any of the resident’s
p.000023: affairs mentioned in section 39 that there has been any change in the condition or circumstances of the resident
p.000023: bearing on the resident’s incapacity; and
p.000023: (b) shall expire 3 years after it was issued.
p.000023: (8) If the managers of the authorised establishment consider that intimation to the resident under subsection (3)
p.000023: or any action under subsection (4) would be likely to pose a serious risk to the health of the resident they may apply
p.000023: to the supervisory body for a direction that they need not make the intimation or take the action.
p.000023: (9) The Scottish Ministers may prescribe the evidence which the supervisory body shall take into account
p.000023: in reaching a decision under subsection (8).
p.000023:
p.000023: 38 Financial procedures and controls in registered establishments
p.000023: (1) In section 1(3) of the Nursing Homes Registration (Scotland) Act 1938 (c.73) (“the 1938 Act”), after paragraph
p.000023: (d) there shall be inserted—
p.000023: “(e) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the home which the applicant will be required to manage.”.
p.000023: (2) In section 4(1)(a) of the 1938 Act, after sub-paragraph (ii) there shall be inserted “; and
p.000023: (iii) the financial procedures and controls relating to residents’ property.”.
p.000023: (3) In section 62(3) of the Social Work (Scotland) Act 1968 (c.49), after paragraph (c) there shall be inserted—
p.000023: “(d) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the establishment which the applicant will be required to
p.000023: manage.”.
p.000023: (4) In section 13(1) of the 1984 Act, after paragraph (a) there shall be inserted—
p.000023: “(aa) that the person proposing to carry on the establishment maintains financial procedures and controls
p.000023: adequate to ensure the safeguarding of any property of a resident of the hospital which that person will be
p.000023: required to manage.”.
p.000023:
p.000023: 39 Matters which may be managed
p.000023: (1) The matters which may be managed under this Part by the managers of an authorised establishment are—
p.000023: (a) claiming, receiving, holding and spending any pension, benefit, allowance or other payment other than
p.000023: under the Social Security Contributions and Benefits Act 1992 (c.4);
p.000023: (b) claiming, receiving, holding and spending any money to which a resident is entitled;
p.000023: (c) holding any other moveable property to which the resident is entitled;
p.000023: (d) disposing of such moveable property,
p.000023:
p.000023: 24 Adults with Incapacity (Scotland) Act 2000
p.000023: (asp 4) Part 4—Management of residents’ finances
p.000023:
p.000023: and in this Part these matters, or any of them, are referred to as residents’ affairs; and cognate expressions shall be
p.000023: construed accordingly.
p.000023: (2) In managing these matters, the managers of an authorised establishment shall—
p.000023: (a) act only for the benefit of the resident; and
p.000023: (b) have regard to the sentimental value that any item might have for the resident, or would have but for the
p.000023: resident’s incapacity.
p.000023: (3) The managers of an authorised establishment shall not, without the consent of the supervisory body,
p.000023: manage any matter if that matter has a value greater than that which is prescribed for the purposes of this subsection.
p.000023: (4) The supervisory body may in relation to an individual resident permit the managers of the authorised
p.000023: establishment to manage any matter which has a value greater than that which is prescribed in relation to it under
p.000023: subsection (3).
p.000023: (5) For the purpose of this section, “manage” denotes no greater responsibility than complying with the
p.000023: duties set out in this section.
p.000023:
p.000023: 40 Supervisory bodies
p.000023: (1) A supervisory body for the purposes of this Part is—
p.000023: (a) in relation to a registered establishment (other than an establishment mentioned in paragraph (f) of section
p.000023: 35(1)), the person or body with whom the establishment is required to register;
...
p.000027: (who may be the resident) as they consider appropriate.
p.000027: (5) Where the supervisory body is satisfied that the circumstances mentioned in subsection (1)
p.000027: no longer apply in relation to an establishment whose power to manage it has revoked, it may annul the revocation
p.000027: of the power and, where necessary, of the registration.
p.000027: (6) Any decision of a supervisory body may be appealed to the sheriff, whose decision shall be final.
p.000027:
p.000027: 46 Disapplication of Part 4
p.000027: (1) This Part shall not apply to any of the matters which may be managed under section 39 if—
p.000027: (a) there is a guardian, continuing attorney, or other person with powers relating to that matter; or
p.000027: (b) an intervention order has been granted relating to that matter,
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
p.000027: (b) has certified in accordance with subsection (5) that he is of this opinion.
p.000027: (2) Without prejudice to any authority conferred by any other enactment or rule of law, and subject to sections 49
p.000027: and 50 and to the following provisions of this section, the medical practitioner primarily responsible for the
p.000027: medical treatment of the adult shall have, during the period specified in the certificate, authority to do what
p.000027: is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or
p.000027: mental health of the adult.
...
p.000031: under this Part.
p.000031: (8) In this section any reference to—
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 52 Appeal against decision as to medical treatment
p.000031: Any decision taken for the purposes of this Part, other than a decision by a medical practitioner under
p.000031: section 50, as to the medical treatment of the adult may be appealed by any person having an interest in the personal
p.000031: welfare of the adult to the sheriff and thence, with the leave of the sheriff, to the Court of Session.
p.000031:
p.000031:
p.000031: PART 6
p.000031: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000031: Intervention orders
p.000031: 53 Intervention orders
p.000031: (1) The sheriff may, on an application by any person (including the adult himself) claiming an interest in the
p.000031: property, financial affairs or personal welfare of an adult, if he is satisfied that the adult is incapable
p.000031: of taking the action, or is incapable in relation to the decision about his property, financial affairs or personal
p.000031: welfare to which the application relates, make an order (in this Act referred to as an “intervention order”).
p.000031: (2) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000031: or guardianship order which may have been previously made in relation to the adult, and to any order varying,
p.000031: or ancillary to, such an order.
p.000031: (3) Where it appears to the local authority that—
p.000031: (a) the adult is incapable as mentioned in subsection (1); and
p.000031: (b) no application has been made or is likely to be made for an order under this section in relation
p.000031: to the decision to which the application under this subsection relates; and
p.000031: (c) an intervention order is necessary for the protection of the property, financial affairs or personal
p.000031: welfare of the adult,
p.000031:
p.000031: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000033: 33
p.000033: Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: they shall apply under this section for an order.
p.000033: (4) Section 57(3) and (4) shall apply to an application under this section and, for this purpose, for
p.000033: the reference to the individual or office holder nominated for appointment as guardian there shall be substituted
p.000033: a reference to a person nominated in such application.
p.000033: (5) An intervention order may—
p.000033: (a) direct the taking of any action specified in the order;
p.000033: (b) authorise the person nominated in the application to take such action or make such decision in relation to
p.000033: the property, financial affairs or personal welfare of the adult as is specified in the order;
p.000033: (6) Where an intervention order directs the acquisition of accommodation for, or the disposal of any
p.000033: accommodation used for the time being as a dwelling house by, the adult, the consent of the Public Guardian
p.000033: as respects the consideration shall be required before the accommodation is acquired or, as the case may be, disposed
p.000033: of.
p.000033: (7) In making or varying an intervention order the sheriff may, and in the case of an intervention
p.000033: order relating to property or financial affairs shall, except where—
p.000033: (a) the person authorised under the intervention order is unable to find caution; but
p.000033: (b) the sheriff is satisfied that nevertheless he is suitable to be authorised under the order,
p.000033: require the person authorised under the order to find caution.
p.000033: (8) The sheriff may, on an application by—
p.000033: (a) the person authorised under the intervention order; or
p.000033: (b) the adult; or
p.000033: (c) any person claiming an interest in the property, financial affairs or personal welfare of the adult,
p.000033: make an order varying the terms of, or recalling, the intervention order or any other order made for the
p.000033: purposes of the intervention order.
p.000033: (9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the
p.000033: capacity to do so.
p.000033: (10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor
p.000033: containing the order to the Public Guardian who shall—
p.000033: (a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be
p.000033: prescribed; and
p.000033: (b) notify the adult, the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000033: which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors
p.000033: which include it) the Mental Welfare Commission.
p.000033: (11) A transaction for value between a person authorised under an intervention order, purporting to act as
p.000033: such, and a third party acting in good faith shall not be invalid on the ground only that—
p.000033: (a) the person acted outwith the scope of his authority;
p.000033:
p.000033: 34 Adults with Incapacity (Scotland) Act 2000
p.000033: (asp 4) Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: (b) the person failed to observe any requirement, whether substantive or procedural, imposed by or under this Act or
p.000033: by the sheriff or by the Public Guardian; or
p.000033: (c) there was any irregularity whether substantive or procedural in the authorisation of the person.
p.000033: (12) A person authorised under an intervention order may recover from the estate of the adult the amount of such
p.000033: reasonable outlays as he incurs in doing anything directed or authorised under the order.
p.000033: (13) Where a third party has acquired, in good faith and for value, title to any interest in
p.000033: heritable property from a person authorised under an intervention order that title shall not be challengeable on the
p.000033: ground only—
p.000033: (a) of any irregularity of procedure in the making of the intervention order; or
p.000033: (b) that the person authorised under the intervention order has acted outwith the scope of the authority.
p.000033: (14) Sections 64(2) and 67(3) and (4) shall apply to an intervention order as they apply to a guardianship order and,
p.000033: for this purpose, for any reference to a guardian there shall be substituted a reference to the person authorised under
p.000033: the order.
p.000033:
p.000033: 54 Records: intervention orders
p.000033: A person authorised under an intervention order shall keep records of the exercise of his powers.
p.000033:
p.000033: 55 Notification of change of address
p.000033: After particulars relating to an intervention order are entered in the register under section 53 the
p.000033: person authorised under the intervention order shall notify the Public Guardian—
p.000033: (a) of any change in his address; and
p.000033: (b) of any change in the address of the adult,
p.000033: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000033: 6(2)(b)(v) and notify the local authority and (in a case where the adult’s incapacity is by reason of,
p.000033: or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or
p.000033: factors which include it) the Mental Welfare Commission.
p.000033:
p.000033: 56 Registration of intervention order relating to heritable property
p.000033: (1) This section applies where the sheriff makes an intervention order which vests in the person
p.000033: authorised under the order any right to deal with, convey or manage any interest in heritable property which is
p.000033: recorded or is capable of being recorded in the General Register of Sasines or is registered or is capable of being
p.000033: registered in the Land Register of Scotland.
p.000033: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000033: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000033:
p.000033: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000035: 35
p.000035: Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (3) The person authorised under the order shall forthwith apply to the Keeper of the Registers of
p.000035: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or,
p.000035: as the case may be, for registering of it in the Land Register of Scotland.
p.000035: (4) An application under subsection (3) shall contain—
p.000035: (a) the name and address of the person authorised under the order;
p.000035: (b) a statement that the person authorised under the order has powers relating to each property specified in the
p.000035: order;
p.000035: (c) a copy of the interlocutor.
p.000035: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000035: (a) record the interlocutor in the Register; and
p.000035: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000035: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000035: sheet of the property to show it.
p.000035: (7) The person authorised under the order shall send the endorsed interlocutor or, as the case may
p.000035: be, the updated Land Certificate or an office copy thereof to the Public Guardian who shall enter
p.000035: prescribed particulars of it in the register maintained by him under section 6(2)(b)(v).
p.000035:
p.000035: Guardianship orders
p.000035: 57 Application for guardianship order
p.000035: (1) An application may be made under this section by any person (including the adult himself) claiming
p.000035: an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing
p.000035: an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.
p.000035: (2) Where it appears to the local authority that—
p.000035: (a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and
p.000035: (b) no application has been made or is likely to be made for an order under this section; and
p.000035: (c) a guardianship order is necessary for the protection of the property, financial affairs or personal
p.000035: welfare of the adult,
p.000035: they shall apply under this section for an order.
p.000035: (3) There shall be lodged in court along with an application under this section—
p.000035: (a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days
p.000035: before the lodging of the application by at least two medical practitioners one of whom, in a case where the
p.000035: incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of
p.000035: section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;
p.000035:
p.000035: 36 Adults with Incapacity (Scotland) Act 2000
p.000035: (asp 4) Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (b) where the application relates to the personal welfare of the adult, a report, in prescribed form,
p.000035: from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate,
p.000035: from the chief social work officer), containing his opinion as to—
p.000035: (i) the general appropriateness of the order sought, based on an interview and assessment of the adult carried
p.000035: out not more than 30 days before the lodging of the application; and
p.000035: (ii) the suitability of the individual nominated in the application to be appointed guardian;
p.000035: and
p.000035: (c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
p.000035: the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as
p.000035: the case may be, the mental health officer, within 21 days of the date of the notice.
p.000035: (5) The sheriff may, on an application being made to him, at any time before the disposal of the application made
p.000035: under this section, make an order for the appointment of an interim guardian.
p.000035: (6) The appointment of an interim guardian in pursuance of this section shall, unless recalled earlier,
p.000035: cease to have effect—
p.000035: (a) on the appointment of a guardian under section 58; or
p.000035: (b) at the end of the period of 3 months from the date of appointment, whichever is the earlier.
p.000035:
p.000035: 58 Disposal of application
p.000035: (1) Where the sheriff is satisfied in considering an application under section 57 that—
p.000035: (a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000035: property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
p.000035: (b) no other means provided by or under this Act would be sufficient to enable the adult’s interests in his
p.000035: property, financial affairs or personal welfare to be safeguarded or promoted,
p.000035: he may grant the application.
p.000035: (2) In considering an application under section 57, the sheriff shall have regard to any intervention
p.000035: order or guardianship order which may have been previously made in relation to the adult, and to any order
p.000035: varying, or ancillary to, such an order.
p.000035: (3) Where the sheriff is satisfied that an intervention order would be sufficient as mentioned in subsection (1),
p.000035: he may treat the application under this section as an application for an intervention order under section 53 and may
p.000035: make such order as appears to him to be appropriate.
p.000035:
p.000035: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000037: 37
p.000037: Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (4) Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as
p.000037: a “guardianship order”) appointing the individual or office holder nominated in the application to be the
p.000037: guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown,
p.000037: he may determine.
p.000037: (5) Where more than one individual or office holder is nominated in the application, a guardianship
p.000037: order may, without prejudice to the power under section 62(1) to appoint joint guardians, appoint two or more guardians
p.000037: to exercise different powers in relation to the adult.
p.000037: (6) In making a guardianship order relating to the property or financial affairs of the adult the sheriff shall,
p.000037: except where—
p.000037: (a) the individual is unable to find caution; but
p.000037: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian, require an individual
p.000037: appointed as guardian to find caution.
p.000037: (7) Where the sheriff makes a guardianship order the sheriff clerk shall forthwith send a copy of the
p.000037: interlocutor containing the order to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv);
p.000037: (b) when satisfied that the guardian has found caution if so required, issue a certificate of appointment
p.000037: to the guardian;
p.000037: (c) notify the adult of the appointment of the guardian; and
p.000037: (d) notify the local authority and (in a case where the incapacity of the adult is by reason of, or
p.000037: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000037: factors which include it) the Mental Welfare Commission of the terms of the interlocutor.
p.000037:
p.000037: 59 Who may be appointed as guardian
p.000037: (1) The sheriff may appoint as guardian—
p.000037: (a) any individual whom he considers to be suitable for appointment and who has consented to being
p.000037: appointed;
p.000037: (b) where the guardianship order is to relate only to the personal welfare of the adult, the chief social work
p.000037: officer of the local authority.
p.000037: (2) Where the guardianship order is to relate to the property and financial affairs and to the personal welfare
p.000037: of the adult and joint guardians are to be appointed, the chief social work officer of the local authority may
p.000037: be appointed guardian in relation only to the personal welfare of the adult.
p.000037: (3) The sheriff shall not appoint an individual as guardian to an adult unless he is satisfied that the individual
p.000037: is aware of—
p.000037: (a) the adult’s circumstances and condition and of the needs arising from such circumstances and
p.000037: condition; and
p.000037: (b) the functions of a guardian.
p.000037: (4) In determining if an individual is suitable for appointment as guardian, the sheriff shall have regard to—
p.000037: (a) the accessibility of the individual to the adult and to his primary carer;
p.000037:
p.000037: 38 Adults with Incapacity (Scotland) Act 2000
p.000037: (asp 4) Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (b) the ability of the individual to carry out the functions of guardian;
p.000037: (c) any likely conflict of interest between the adult and the individual;
p.000037: (d) any undue concentration of power which is likely to arise in the individual over the adult;
p.000037: (e) any adverse effects which the appointment of the individual would have on the interests of the adult;
p.000037: (f) such other matters as appear to him to be appropriate.
p.000037: (5) Paragraphs (c) and (d) of subsection (4) shall not be regarded as applying to an individual by
...
p.000037: and for the purposes of so applying that section—
p.000037: (a) references to the making of a guardianship order and the appointment of a guardian (however
p.000037: expressed) shall be construed as references to, respectively, the renewal of the order and the continuation of
p.000037: appointment;
p.000037: (b) for subsection (4) there shall be substituted—
p.000037: “(4) Where the sheriff grants an application under section 60, he may continue the guardianship order for a period of
p.000037: 5 years or for such other period (including an indefinite period) as, on cause shown, he may determine.”.
p.000037: (5) Where the sheriff refuses an application under this section, the sheriff clerk shall forthwith send
p.000037: a copy of the interlocutor containing the refusal to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000037: (b) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000037: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000037: include it) the Mental Welfare Commission.
p.000037:
p.000037: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000039: 39
p.000039: Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: 61 Registration of guardianship order relating to heritable property
p.000039: (1) This section applies where the sheriff makes a guardianship order which vests in the guardian any
p.000039: right of the adult to deal with, convey or manage any interest in heritable property which is recorded or is capable of
p.000039: being recorded in the General Register of Sasines or is registered or is capable of being registered in
p.000039: the Land Register of Scotland.
p.000039: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000039: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000039: (3) The guardian shall, after finding caution if so required, forthwith apply to the Keeper of the Registers of
p.000039: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or, as the
p.000039: case may be, registering of it in the Land Register of Scotland.
p.000039: (4) An application under subsection (3) shall contain—
p.000039: (a) the name and address of the guardian;
p.000039: (b) a statement that the guardian has powers relating to each property specified in the order;
p.000039: (c) a copy of the interlocutor.
p.000039: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000039: (a) record the interlocutor in the Register; and
p.000039: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000039: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000039: sheet of the property to show the interlocutor.
p.000039: (7) The guardian shall send the endorsed interlocutor or, as the case may be, the updated Land Certificate or
p.000039: an office copy thereof to the Public Guardian who shall enter prescribed particulars of it in the register
p.000039: maintained by him under section 6(2)(b)(iv).
p.000039:
p.000039: Joint and substitute guardians
p.000039: 62 Joint guardians
p.000039: (1) An application may be made to the sheriff—
p.000039: (a) by two or more individuals seeking appointment, for their appointment as joint guardians to an adult;
p.000039: or
p.000039: (b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly
p.000039: with one or more existing guardians.
p.000039: (2) Joint guardians shall not be appointed to an adult unless—
p.000039: (a) the individuals so appointed are parents, siblings or children of the adult; or
p.000039: (b) the sheriff is satisfied that, in the circumstances, it is appropriate to appoint as joint
p.000039: guardians individuals who are not related to the adult as mentioned in paragraph (a).
p.000039:
p.000039: 40 Adults with Incapacity (Scotland) Act 2000
p.000039: (asp 4) Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: (3) Where an application is made under subsection (1)(a), sections 58 and 59 shall apply for the purposes of the
p.000039: disposal of that application as they apply for the disposal of an application under section 57.
...
p.000039: (8) Where joint guardians disagree as to the exercise of their functions, either or both of them may
p.000039: apply to the sheriff for directions under section 3.
p.000039: (9) Where there are joint guardians, a third party in good faith is entitled to rely on the
p.000039: authority to act of any one or more of them.
p.000039:
p.000039: 63 Substitute guardian
p.000039: (1) In any case where an individual is appointed as guardian under section 58 the sheriff may, on an
p.000039: application, appoint to act as guardian in the event of the guardian so appointed becoming unable to
p.000039: act any individual or office holder who could competently be appointed by virtue of section 59.
p.000039: (2) In this Act an individual appointed under section 58 and an individual or office holder appointed under this
p.000039: section are referred to respectively as an “original guardian” and a “substitute guardian”.
p.000039: (3) The appointment of a substitute guardian shall be for the same period as the appointment of the original
p.000039: guardian under section 58(4).
p.000039:
p.000039: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000041: 41
p.000041: Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: (4) An application for appointment as a substitute guardian may be made at the time of the application for the
p.000041: appointment of the original guardian or at any time thereafter.
p.000041: (5) In making an order appointing an individual as substitute guardian with powers relating to the property or
p.000041: financial affairs of the adult the sheriff shall, except where—
p.000041: (a) the individual is unable to find caution; but
p.000041: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed substitute guardian,
p.000041: require an individual appointed as substitute guardian to find caution.
p.000041: (6) Subsection (1) shall apply to an individual who, having been appointed as a substitute guardian subsequently,
p.000041: by virtue of this section, becomes the guardian as it applies to an individual appointed under section 58 and, for this
p.000041: purpose, any reference in this section to the “original guardian” shall be construed accordingly.
p.000041: (7) Where the sheriff appoints a substitute guardian (other than a substitute guardian appointed in
p.000041: the same order as an original guardian) under subsection (1), the sheriff clerk shall send a copy of the
p.000041: interlocutor containing the order appointing the substitute guardian to the Public Guardian who shall—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000041: (b) notify the adult, the original guardian and the local authority and (in a case where the adult’s incapacity is
p.000041: by reason of, or by reasons which include, mental disorder and the guardianship order relates to the
p.000041: adult’s personal welfare or factors which include it) the Mental Welfare Commission.
...
p.000041: (9) The Public Guardian on being notified under subsection (8) shall, if the substitute guardian is
p.000041: prepared to act—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000041: (b) when satisfied that the substitute guardian has found caution if so required, issue the substitute guardian with
p.000041: a certificate of appointment;
p.000041: (c) notify the adult, the original guardian, the local authority and (in a case where the adult’s incapacity is by
p.000041: reason of, or by reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000041: welfare or factors which include it) the Mental Welfare Commission that the substitute guardian is acting.
p.000041: (10) Unless otherwise specified in the order appointing him, the substitute guardian shall have the same
p.000041: functions and powers as those exercisable by the original guardian immediately before the event mentioned in
p.000041: subsection (1).
p.000041:
p.000041: 42 Adults with Incapacity (Scotland) Act 2000
p.000041: (asp 4) Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: Functions etc. of guardian
p.000041: 64 Functions and duties of guardian
p.000041: (1) Subject to the provisions of this section, an order appointing a guardian may confer on him—
p.000041: (a) power to deal with such particular matters in relation to the property, financial affairs or personal
p.000041: welfare of the adult as may be specified in the order;
p.000041: (b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in
p.000041: the order;
p.000041: (c) power to pursue or defend an action of declarator of nullity of marriage, or of divorce or
p.000041: separation in the name of the adult;
p.000041: (d) power to manage the property or financial affairs of the adult, or such parts of them as may be
p.000041: specified in the order;
p.000041: (e) power to authorise the adult to carry out such transactions or categories of transactions as the
p.000041: guardian may specify.
p.000041: (2) A guardian may not—
p.000041: (a) place the adult in a hospital for the treatment of mental disorder against his will; or
p.000041: (b) consent on behalf of the adult to any form of treatment mentioned in section 48(1) or (2).
p.000041: (3) A guardian shall (unless prohibited by an order of the sheriff and subject to any conditions or
p.000041: restrictions specified in such an order) have power by virtue of his appointment to act as the adult’s legal
p.000041: representative in relation to any matter within the scope of the power conferred by the guardianship order.
p.000041: (4) The guardian shall not later than 7 days after any change of his own or the adult’s address
p.000041: notify the Public Guardian who shall—
p.000041: (a) notify the adult (in a case where it is the guardian’s address which has changed), the local authority and (in a
p.000041: case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the guardianship order
p.000041: relates to the adult’s personal welfare or factors which include it) the Mental Welfare Commission
p.000041: of the change; and
p.000041: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000041: (5) A guardian having powers relating to the property or financial affairs of the adult shall, subject to—
p.000041: (a) such restrictions as may be imposed by the court;
p.000041: (b) any management plan prepared under paragraph 1 of schedule 2; or
p.000041: (c) paragraph 6 of that schedule,
p.000041: be entitled to use the capital and income of the adult’s estate for the purpose of purchasing assets,
p.000041: services or accommodation so as to enhance the adult’s quality of life.
p.000041: (6) The guardian may arrange for some or all of his functions to be exercised by one or more persons
p.000041: acting on his behalf but shall not be entitled to surrender or transfer any part of them to another person.
p.000041:
p.000041: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000043: 43
p.000043: Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (7) The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or
p.000043: financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the
p.000043: guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect
p.000043: as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.
p.000043: (8) An interim guardian appointed under section 57(5) having powers relating to—
p.000043: (a) the property or financial affairs of an adult shall report to the Public Guardian;
p.000043: (b) the personal welfare of an adult shall report to the chief social work officer of the local authority,
p.000043: every month as to his exercise of those powers.
p.000043: (9) Where the chief social work officer of the local authority has been appointed guardian he shall, not later
p.000043: than 7 working days after his appointment, notify any person who received notification under section 58(7) of
p.000043: the appointment of the name of the officer responsible at any time for carrying out the functions and duties of
p.000043: guardian.
p.000043: (10) If, in relation to the appointment of the chief social work officer as guardian, the sheriff has directed that
p.000043: that intimation or notification of any application or other proceedings should not be given to the adult, the chief
p.000043: social work officer shall not notify the adult under subsection (9).
p.000043: (11) The Scottish Ministers may by regulations define the scope of the powers which may be conferred on a guardian
p.000043: under subsection (1) and the conditions under which they shall be exercised.
p.000043: (12) Schedule 2 (which makes provision as to the guardian’s management of the estate of an adult) has effect.
p.000043:
p.000043: 65 Records: guardians
p.000043: A guardian shall keep records of the exercise of his powers.
p.000043:
p.000043: 66 Gifts
p.000043: (1) A guardian having powers relating to the property or financial affairs of an adult may make a gift out of the
p.000043: adult’s estate only if authorised to do so by the Public Guardian.
p.000043: (2) Authorisation by the Public Guardian under subsection (1) may be given generally, or in respect of a particular
p.000043: gift.
p.000043: (3) On receipt of an application in the prescribed form for an authorisation to make a gift, the Public Guardian
p.000043: shall, subject to subsection (4), intimate the application to the adult, his nearest relative, his primary carer
p.000043: and any other person who the Public Guardian considers has an interest in the application and advise
p.000043: them of the prescribed period within which they may object to the granting of the application; and he shall not
p.000043: grant the application without affording to any objector an opportunity of being heard.
p.000043: (4) Where the Public Guardian is of the opinion that the value of the gift is such that intimation
p.000043: is not necessary, he may dispense with intimation.
p.000043: (5) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application.
p.000043:
p.000043: 44 Adults with Incapacity (Scotland) Act 2000
p.000043: (asp 4) Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (6) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000043: guardian and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000043: refuse the application without affording to the guardian, if he objects, an opportunity of being heard.
p.000043: (7) The Public Guardian may at his own instance or at the instance of the guardian or of any person who objects
p.000043: to the granting of the application remit the application for determination by the sheriff, whose
p.000043: decision shall be final.
p.000043: (8) A decision of the Public Guardian—
p.000043: (a) to grant an application under subsection (5) or to refuse an application; or
p.000043: (b) to refuse to remit an application to the sheriff under subsection (7), may be appealed to the sheriff, whose
p.000043: decision shall be final.
p.000043:
p.000043: 67 Effect of appointment and transactions of guardian
p.000043: (1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the
p.000043: scope of the authority conferred on the guardian except in a case where he has been authorised by the guardian
p.000043: under section 64(1)(e); but nothing in this subsection shall be taken to affect the capacity of the adult in
p.000043: relation to any other matter.
p.000043: (2) Where the guardian has powers relating to the property or financial affairs of the adult, the certificate of
p.000043: appointment issued to him by the Public Guardian shall, subject to the terms of the order appointing him, have the
p.000043: effect of—
p.000043: (a) authorising the guardian to take possession of, manage and deal with any moveable or immoveable estate
p.000043: (wherever situated) of the adult;
p.000043: (b) requiring any payment due to the adult to be made to the guardian,
p.000043: in so far as the estate, payment or matter falls within the scope of the guardian’s authority.
p.000043: (3) A guardian having powers relating to the personal welfare of an adult may exercise these powers in
p.000043: relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
p.000043: (4) The guardian shall be personally liable under any transaction entered into by him—
p.000043: (a) without disclosing that he is acting as guardian of the adult; or
p.000043: (b) which falls outwith the scope of his authority,
p.000043: but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this
p.000043: Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect
p.000043: of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.
p.000043: (5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the
...
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
p.000045: (b) who is the chief social work officer of a local authority, includes payment for items and services
p.000045: only if they would not normally be provided free of charge by the local authority to a person who is in similar
p.000045: circumstances but who does not have a guardian.
p.000045: (3) The local authority shall, in relation to the cost of any application by them for appointment of
p.000045: their chief social work officer as guardian or of any subsequent application by that officer while acting as
p.000045: guardian—
p.000045: (a) where the application relates to the personal welfare of the adult, meet such cost;
p.000045: (b) where the application relates to the property or financial affairs of the adult, be entitled to recover
p.000045: such cost from the estate of the adult,
p.000045: and where the application relates to the personal welfare and to the property or financial affairs of the adult the
p.000045: sheriff shall, in determining the application, apportion the cost as he thinks fit.
p.000045: (4) Remuneration shall be payable out of the adult’s estate—
p.000045: (a) in respect of the exercise of functions relating to the personal welfare of the adult, only in a case where
p.000045: special cause is shown;
p.000045: (b) in respect of the exercise of functions relating to the property or financial affairs of the adult, unless
p.000045: the sheriff directs otherwise in the order appointing the guardian,
p.000045: but shall not be payable to a local authority in respect of the exercise by their chief social work
p.000045: officer of functions relating to the personal welfare of the adult.
p.000045: (5) In determining whether or not to make a direction under subsection (4)(b), the sheriff shall take into account
p.000045: the value of the estate and the likely difficulty of managing it.
p.000045: (6) Any remuneration payable to the guardian and the amount of outlays to be allowed under subsection
p.000045: (1) shall be fixed by the Public Guardian—
p.000045: (a) in a case where the guardian is required to submit accounts, when the guardian’s accounts for that period are
p.000045: audited;
p.000045:
p.000045: 46 Adults with Incapacity (Scotland) Act 2000
p.000045: (asp 4) Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) in any other case, on an application by the guardian,
p.000045: and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the
p.000045: estate.
p.000045: (7) The Public Guardian may allow payments to account to be made by way of remuneration
p.000045: during the accounting period if it would be unreasonable to expect the guardian to wait for payment until
p.000045: the end of an accounting period.
p.000045: (8) A decision by the Public Guardian—
p.000045: (a) under subsection (6) as to the remuneration payable and the outlays allowable to the guardian;
p.000045: (b) under subsection (7) as to payments to account to the guardian may be appealed to the sheriff, whose decision
p.000045: shall be final.
p.000045:
p.000045: 69 Forfeiture of guardian’s remuneration
p.000045: Where a guardian is in breach of any duty of care, fiduciary duty or obligation imposed by this Act the sheriff may, on
p.000045: an application being made to him by any person claiming an interest in the property, financial affairs or personal
p.000045: welfare of the adult, order the forfeiture (in whole or in part) of any remuneration due to the guardian.
p.000045:
p.000045: 70 Non-compliance with decisions of guardian with welfare powers
p.000045: (1) Where any decision of a guardian with powers relating to the personal welfare of the adult is not complied
p.000045: with by the adult or by any other person, and the adult or other person might reasonably be expected to comply with the
p.000045: decision, the sheriff may, on an application by the guardian—
p.000045: (a) make an order ordaining the adult or any person named in the order to implement the decision of the guardian;
p.000045: (b) where the non-compliance relates to a decision of the guardian as to the place of residence of the adult, grant a
p.000045: warrant authorising a constable—
p.000045: (i) to enter any premises where the adult is, or is reasonably supposed to be;
p.000045: (ii) to apprehend the adult and to remove him to such place as the guardian may direct.
p.000045: (2) Where any decision of a guardian with powers relating to the personal welfare of the adult is not
p.000045: complied with by any person other than the adult, and that person might reasonably be expected to comply with
p.000045: the decision, the sheriff may, on an application by the guardian make an order ordaining the person named in the order
p.000045: to implement the decision of the guardian.
p.000045: (3) On receipt of an application in the prescribed form for an order or warrant under subsection (1)
p.000045: or for an order under subsection (2), the court shall intimate the application to the adult or, as the case
p.000045: may be, to the person named in the application as a person against whom the order or warrant is sought and
p.000045: shall advise them of the prescribed period within which they may object to the granting of the application; and the
p.000045: sheriff shall not grant the order or warrant without affording to any objector an opportunity of being
p.000045: heard.
p.000045: (4) Having heard any objections as mentioned in subsection (3), the sheriff may grant the application.
p.000045:
p.000045: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000047: 47
p.000047: Part 6—Intervention orders and guardianship orders
p.000047:
p.000047: (5) A constable executing a warrant under subsection (1)(b) may use such force as is reasonable in
p.000047: the circumstances and shall be accompanied by the guardian or such person as the guardian may authorise in
p.000047: writing.
p.000047: (6) In this section any reference to a guardian shall include a reference to a guardian (however
p.000047: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000047: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000047:
p.000047: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000047: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000047: (1) The sheriff, on an application made to him by an adult subject to guardianship or by any other person
p.000047: claiming an interest in the adult’s property, financial affairs or personal welfare, may—
p.000047: (a) replace a guardian by an individual or office holder nominated in the application if he is satisfied, in
p.000047: relation to an individual, that he is suitable for appointment having regard to the matters set out in section
p.000047: 59(3) to (5);
p.000047: (b) remove a guardian from office if he is satisfied—
p.000047: (i) that there is a substitute guardian who is prepared to act as guardian; or
p.000047: (ii) in a case where there are joint guardians, that the remaining guardian is or remaining guardians are prepared
p.000047: to continue to act; or
p.000047: (c) recall a guardianship order or otherwise terminate a guardianship if he is satisfied—
p.000047: (i) that the grounds for appointment of a guardian are no longer fulfilled; or
p.000047: (ii) that the interests of the adult in his property, financial affairs or personal welfare can be satisfactorily
p.000047: safeguarded or promoted otherwise than by guardianship,
p.000047: and where an application under this subsection is granted, the sheriff clerk shall send a copy of the interlocutor to
p.000047: the Public Guardian.
p.000047: (2) In making an order replacing a guardian by an individual with powers relating to the property or
p.000047: financial affairs of the adult or removing a guardian from office where there is a substitute guardian with such powers
p.000047: prepared to act as guardian, the sheriff shall, except where—
p.000047: (a) the individual or substitute guardian is unable to find caution; but
p.000047: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian or substitute guardian, as the
p.000047: case may be,
p.000047: require an individual appointed as guardian or the substitute guardian to find caution.
p.000047: (3) The Public Guardian on receiving a copy of the interlocutor under subsection (1) shall—
p.000047: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000047: (b) where the sheriff—
p.000047:
p.000047: 48 Adults with Incapacity (Scotland) Act 2000
p.000047: (asp 4) Part 6—Intervention orders and guardianship orders
p.000047:
p.000047: (i) replaces the guardian by the individual or office holder nominated in the application, when satisfied
p.000047: that, in the case of an individual, the individual has found caution if so required, issue him with a
p.000047: certificate of appointment;
p.000047: (ii) removes a guardian from office and a substitute guardian is prepared to act, when satisfied that the substitute
p.000047: guardian has found caution if so required, issue the substitute guardian with a certificate of appointment;
p.000047: (iii) removes a joint guardian from office and there is a joint guardian who is prepared to continue to act,
p.000047: issue a remaining joint guardian with a new certificate of appointment;
p.000047: (c) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000047: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000047: welfare or factors including it) the Mental Welfare Commission.
p.000047: (4) Where the sheriff recalls the guardianship order he may at the same time make an intervention
p.000047: order.
p.000047: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000047: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000047: his incapacity, if the guardianship is recognised by the law of Scotland; and “guardianship order” shall be construed
p.000047: accordingly.
p.000047:
p.000047: 72 Discharge of guardian with financial powers
p.000047: (1) At any time after—
p.000047: (a) the recall of a guardianship order appointing a guardian with powers relating to the property or financial
p.000047: affairs of an adult;
p.000047: (b) the resignation, removal or replacement of such a guardian; or
p.000047: (c) the death of the adult,
p.000047: the Public Guardian may, on an application by the former guardian or, if the former guardian has died,
p.000047: his representative, grant a discharge in respect of the former guardian’s actings and intromissions with the
p.000047: estate of the adult.
p.000047: (2) On receipt of an application in the prescribed form, the Public Guardian shall intimate the application to the
p.000047: adult, his nearest relative, his primary carer and any other person who the Public Guardian considers has an interest
p.000047: in the application and advise them of the prescribed period within which they may object to the granting of the
p.000047: application; and he shall not grant the application without affording to any objector an opportunity of being heard.
p.000047: (3) Having heard any objections as mentioned in subsection (2) the Public Guardian may grant the application.
p.000047: (4) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000047: applicant and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000047: refuse the application without affording to the applicant, if he objects, an opportunity of being heard.
p.000047: (5) The Public Guardian may at his own instance or at the instance of the applicant or of any person who objects
p.000047: to the granting of the application remit the application for determination by the sheriff, whose decision
p.000047: shall be final.
p.000047:
p.000047: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000049: 49
p.000049: Part 6—Intervention orders and guardianship orders
p.000049:
p.000049: (6) A decision of the Public Guardian—
p.000049: (a) to grant a discharge under subsection (1) or to refuse a discharge;
p.000049: (b) to grant an application under subsection (3) or to refuse an application;
p.000049: (c) to refuse to remit an application to the sheriff under subsection (5) may be appealed to the sheriff, whose
p.000049: decision shall be final.
p.000049:
p.000049: 73 Recall of powers of guardian
p.000049: (1) The Public Guardian, at his own instance or on an application by any person (including the adult himself)
p.000049: claiming an interest in the property and financial affairs of an adult in respect of whom a guardian has been
p.000049: appointed, may recall the powers of a guardian relating to the property or financial affairs of the adult if it
p.000049: appears to him that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his property and financial affairs can be satisfactorily safeguarded or promoted
p.000049: otherwise than by guardianship.
p.000049: (2) Where the Public Guardian recalls the powers of a guardian under subsection (1) he shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult, the guardian and the local authority.
p.000049: (3) The Mental Welfare Commission or the local authority in whose area an adult in respect of whom a guardian has
p.000049: been appointed habitually resides (other than a local authority whose chief social work officer has been appointed
p.000049: guardian), at their own instance or on an application by any person (including the adult himself) claiming an interest
p.000049: in the personal welfare of the adult, may recall the powers of a guardian relating to the personal
p.000049: welfare of the adult if it appears to them that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than
p.000049: by guardianship.
p.000049: (4) Where the Mental Welfare Commission or the local authority recall the powers of a guardian under
...
p.000049: instance of an applicant or of any person who objects to the recall of the powers of the guardian remit the matter for
p.000049: determination by the sheriff whose decision shall be final.
p.000049: (9) A decision of—
p.000049: (a) the Public Guardian, Mental Welfare Commission or local authority to recall the powers of a guardian under
p.000049: subsection (6);
p.000049: (b) the Public Guardian, Mental Welfare Commission or local authority to remit or not to remit the matter to
p.000049: the sheriff under subsection (8),
p.000049: may be appealed to the sheriff, whose decision shall be final, and the decision of the Public Guardian, Mental
p.000049: Welfare Commission or local authority as to the recall of the powers of a guardian shall remain in force pending the
p.000049: final determination of the appeal.
p.000049: (10) The Scottish Ministers may prescribe the forms and procedure for the purposes of any recall of guardianship
p.000049: powers by the Mental Welfare Commission or the local authority.
p.000049:
p.000049: 74 Variation of guardianship order
p.000049: (1) The sheriff, on an application by any person (including the adult himself) claiming an interest in the
p.000049: property, financial affairs or personal welfare of the adult, may vary the powers conferred by the guardianship order
p.000049: and may vary any existing ancillary order.
p.000049: (2) In varying powers relating to the property or financial affairs of the adult conferred by the guardianship
p.000049: order or in varying any ancillary order in relation to such powers the sheriff shall, except where—
p.000049: (a) the guardian is unable to find caution; but
p.000049: (b) the sheriff is satisfied that nevertheless it is appropriate to vary the powers conferred by the
p.000049: guardianship order or to vary the ancillary order,
p.000049: require the guardian to find caution.
p.000049: (3) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000049: or guardianship order which may have been previously made in relation to the adult or any other order varying
p.000049: such an order, and to any order ancillary to such an order.
p.000049: (4) Notwithstanding subsection (1), an application which seeks to vary the powers conferred by a guardianship order
p.000049: or to vary an ancillary order so that—
p.000049:
p.000049: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000051: 51
p.000051: Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (a) a guardian, appointed only in relation to the personal welfare of an adult, shall be appointed also or instead
p.000051: in relation to the property or financial affairs of the adult; or
p.000051: (b) a guardian, appointed only in relation to the property or financial affairs of an adult, shall be
p.000051: appointed also or instead in relation to the personal welfare of the adult;
p.000051: shall be made under section 57.
p.000051: (5) Where the sheriff varies the powers conferred by a guardianship order or varies an ancillary order
p.000051: under this section, the sheriff clerk shall send a copy of the interlocutor containing the order to the Public Guardian
p.000051: who shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000051: (b) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000051: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000051: welfare or factors including it) the Mental Welfare Commission; and
p.000051: (c) if he is satisfied that the guardian has caution, if so required, which covers the varied order,
p.000051: issue a new certificate of appointment where necessary.
p.000051:
p.000051: 75 Resignation of guardian
p.000051: (1) A joint guardian, or a guardian in respect of whom a substitute guardian has been appointed, may
p.000051: resign by giving notice in writing of his intention to do so to the Public Guardian and the local authority and (in a
p.000051: case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship
...
p.000051: (3) Subject to subsection (4), the chief social work officer of the receiving authority shall, within 7 working
p.000051: days of receipt of the notification, notify any person who received notification under section 58(7)
p.000051: of the appointment of the name of the officer responsible at any time for carrying out the functions and
p.000051: duties of guardian.
p.000051: (4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
p.000053: of the person or guardian if he is unaware of the termination or ending of that authority.
p.000053: (4) No title to any interest in heritable property acquired by a third party in good faith and for value from a
p.000053: person authorised under an intervention order or from a guardian having powers relating to the property
p.000053: or financial affairs of the adult shall be challengeable on the grounds only of the termination or
p.000053: coming to an end of the authority of the person or of the guardian.
p.000053: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000053: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000053: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000053:
p.000053: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000053: (1) The Public Guardian shall—
p.000053: (a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by
p.000053: him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the
p.000053: appointment of the guardian was recorded or registered under section 61; or
p.000053: (b) where an adult in respect of whom there was such a guardianship order has died,
p.000053: apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other
p.000053: document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
p.000053: suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest
p.000053: thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.
p.000053: (2) Subsection (1) shall be without prejudice to sections 69 and 82.
p.000053:
p.000053: 82 Limitation of liability
p.000053: (1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised
p.000053: under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of
p.000053: care or fiduciary duty owed to the adult if he has or they have—
p.000053: (a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
p.000053: principles.
p.000053: (2) In this section any reference to—
p.000053: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000053: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
p.000055: welfare of an adult to ill-treat or wilfully neglect that adult.
p.000055: (2) A person guilty of an offence under subsection (1) shall be liable—
p.000055: (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory
p.000055: maximum or both;
p.000055: (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
p.000055:
p.000055: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
...
p.000059: Social Work (Scotland) Act 1968 (c.49), the local authority or any person appointed by the local authority to manage
p.000059: the establishment;
p.000059: (f) in relation to an establishment in respect of which there is registration under section 62 or 63 of
p.000059: the said Act of 1968, the person registered in respect of it or any person appointed by that person to manage the
p.000059: establishment provided that the person so appointed has been named in the application for registration
p.000059: as a person who may be so appointed;
p.000059: (g) in relation to a nursing home in respect of which there is registration under the Nursing Homes
p.000059: Registration (Scotland) Act 1938 (c.73), the person registered in respect of it or any person appointed by that person
p.000059: to manage the nursing home provided that the person so appointed has been named in the application as a
p.000059: person who may be so appointed.
p.000059: 2 The Scottish Ministers may by regulations amend the list of managers in paragraph 1.
p.000059:
p.000059: 60 Adults with Incapacity (Scotland) Act 2000
p.000059: (asp 4) Schedule 2—Management of estate of adult
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059: Management plan
p.000059: SCHEDULE 2
p.000059: (introduced by section 64)
p.000059: MANAGEMENT OF ESTATE OF ADULT
p.000059: 1 (1) A guardian with powers relating to the property and financial affairs of the adult shall, unless the
p.000059: sheriff otherwise directs, prepare a plan (a “management plan”), taking account of any directions given
p.000059: by the sheriff in the order appointing him, for the management, investment and realisation of the adult’s
p.000059: estate and for the application of the estate to the adult’s needs, so far as the estate falls within the guardian’s
p.000059: authority.
p.000059: (2) The management plan shall be submitted in draft by the guardian to the Public Guardian for his approval, along
p.000059: with the inventory of the adult’s estate prepared under paragraph 3, not more than one month, or such other
p.000059: period as the Public Guardian may allow, after the submission of the inventory.
p.000059: (3) The Public Guardian may approve the management plan submitted to him under sub- paragraph (2) or he may
p.000059: approve it with amendments and the plan as so approved or as so amended shall be taken account of by the guardian in
p.000059: the exercise of his functions in relation to the adult.
p.000059: (4) Before the management plan is approved, the guardian shall, unless the sheriff on appointing him
p.000059: has conferred wider powers, have power only to—
p.000059: (a) ingather and take control of the assets of the adult’s estate so as to enable him, when the management plan
p.000059: has been approved, to intromit with them;
p.000059: (b) make such payments as are necessary to provide for the adult’s day to day needs.
p.000059: (5) The Public Guardian may authorise the guardian to exercise any function within the scope of his
p.000059: authority before the management plan is approved, if it would be unreasonable to delay him exercising that
p.000059: function until the plan had been approved.
p.000059: (6) The guardian shall keep the management plan under review and shall put forward to the Public Guardian
p.000059: proposals for variation of it whenever it appears to him to be appropriate.
p.000059: (7) The Public Guardian—
p.000059: (a) may at any time propose any variation to the management plan; and
p.000059: (b) shall review the plan whenever the guardian submits his accounts for audit.
p.000059: (8) The Public Guardian shall notify the guardian of any variation which he proposes to make to the
p.000059: management plan and shall not make any such variation without affording the guardian an opportunity to object.
p.000059: (9) Having heard any objections by the guardian as mentioned in sub-paragraph (8) the Public Guardian
p.000059: may make the variation with or without amendment.
p.000059: Directions from sheriff
p.000059: 2 Where the guardian disagrees with any decision made by the Public Guardian in relation to a management
p.000059: plan prepared under paragraph 1, he may apply to the sheriff for a determination in relation to the matter
p.000059: and the sheriff’s decision shall be final.
p.000059:
p.000059: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000061: 61
p.000061: Schedule 2—Management of estate of adult
p.000061:
p.000061: Inventory of estate
p.000061: 3 (1) A guardian with powers relating to the property or financial affairs of the adult shall, as soon after his
p.000061: appointment as possible and in any event within 3 months of the date of registration of his appointment or such other
p.000061: period as the Public Guardian may allow, submit to the Public Guardian for examination and approval a full
p.000061: inventory of the adult’s estate in so far as it falls within the scope of the guardian’s authority, along with such
p.000061: supporting documents and additional information as the Public Guardian may require.
p.000061: (2) The inventory shall be in a form, and contain information, prescribed by the Public Guardian.
p.000061: (3) Errors in and omissions from the inventory which are discovered by the guardian after the inventory has been
p.000061: approved by the Public Guardian shall be notified by him to the Public Guardian within 6 months of the date of
p.000061: discovery or when submitting his next accounts to the Public Guardian, whichever occurs sooner.
p.000061: (4) The Public Guardian may dispense with the need for the guardian to submit an inventory under sub-paragraph
p.000061: (1) or may require the guardian to take such other action as he thinks appropriate in lieu of submitting an
p.000061: inventory.
p.000061: Money
p.000061: 4 The guardian shall deposit all money received by him as guardian in a bank or a building
p.000061: society in an account in the name of the adult and shall ensure that all sums in excess of £500 (or such other sum as
p.000061: may be prescribed) so deposited shall earn interest.
p.000061: Powers relating to investment and carrying on of business by guardian
p.000061: 5 (1) Subject to the following provisions of this paragraph, a guardian with powers relating to the property or
p.000061: financial affairs of the adult shall be entitled—
p.000061: (a) after obtaining and considering proper advice, to retain any existing investment of the adult;
p.000061: (b) to use the adult’s estate to make new investments in accordance with the management plan prepared
p.000061: under paragraph 1 or with the consent of the Public Guardian.
p.000061: (2) For the purpose of sub-paragraph (1)—
p.000061: (a) proper advice is the advice of a person authorised to carry on investment business in the United Kingdom for the
p.000061: purposes of the Financial Services Act 1986 (c.60) who is not the guardian or any person who is an employer, employee
p.000061: or business partner of the guardian; and
p.000061: (b) the advice must be given or subsequently confirmed in writing.
p.000061: (3) The guardian shall keep every investment under review and in doing so shall have regard to the
p.000061: following principles—
p.000061: (a) that the investment must be prudent;
p.000061: (b) that there must be diversification of investments; and
p.000061: (c) that the investment must be suitable for the adult’s estate.
p.000061: (4) The Public Guardian may at any time direct the guardian to realise any investment.
p.000061: (5) The guardian may, subject to any direction given by the Public Guardian, carry on any business of the adult.
p.000061:
p.000061: 62 Adults with Incapacity (Scotland) Act 2000
p.000061: (asp 4) Schedule 2—Management of estate of adult
p.000061:
p.000061: (6) Any decision by the Public Guardian—
p.000061: (a) under sub-paragraph (4) as to directing the guardian to realise investments;
...
p.000061: opportunity of being heard.
p.000061: (5) Having heard any objections as mentioned in sub-paragraph (4) or where there is no objection as
p.000061: mentioned in sub-paragraph (2), the Public Guardian may grant the application.
p.000061: (6) The Public Guardian may at his own instance or at the instance of any person who objects to the
p.000061: granting or refusal (other than a refusal under sub-paragraph (3)(a)) of the application remit the application to the
p.000061: sheriff for determination by the sheriff, whose decision shall be final.
p.000061: (7) If consent in principle to the purchase or disposal of the accommodation is given, the guardian shall apply to
p.000061: the Public Guardian for consent under sub-paragraph (1)(b) to the purchase or selling price.
p.000061: (8) A decision of the Public Guardian—
p.000061: (a) to grant or to refuse (other than under sub-paragraph (3)(a)) an application; or
p.000061: (b) to refuse to remit an application to the sheriff under sub-paragraph (6), may be appealed to the sheriff, whose
p.000061: decision shall be final.
p.000061: (9) A decision of the Public Guardian to give or to refuse consent under sub-paragraph (1)(b) shall be
p.000061: final.
p.000061:
p.000061: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000063: 63
p.000063: Schedule 2—Management of estate of adult
p.000063:
p.000063: Accounting and auditing
p.000063: 7 (1) A guardian with powers relating to the property or financial affairs of the adult shall submit
p.000063: accounts in respect of each accounting period to the Public Guardian within one month from the end of the
p.000063: accounting period or such longer period as the Public Guardian may allow.
p.000063: (2) There shall be submitted with the accounts under sub-paragraph (1) such supporting documents as the
p.000063: Public Guardian may require, and the Public Guardian may require the guardian to furnish him with such information in
p.000063: connection with the accounts as the Public Guardian may determine.
p.000063: (3) For the purposes of this paragraph, the first accounting period shall commence with the date of appointment of
p.000063: the guardian and end at such date not later than 18 months after the date of registration of the guardian’s
p.000063: appointment as the Public Guardian may determine; and thereafter each accounting period shall be a year commencing
p.000063: with the date on which the immediately previous accounting period ended.
p.000063: (4) Notwithstanding the foregoing provisions of this paragraph, the Public Guardian may at any time—
p.000063: (a) give directions as to the frequency of accounting periods;
p.000063: (b) dispense with the need for the submission of accounts by the guardian; or
p.000063: (c) require the guardian to do anything which the Public Guardian thinks appropriate in lieu of submitting accounts.
p.000063: (5) The accounts shall be in such form as is prescribed by the Public Guardian and different forms may be
p.000063: prescribed for different cases or descriptions of case.
p.000063: (6) Where the estate of the adult includes a business or an interest in a business that part of the accounts
p.000063: which relates to the business or to the interest in the business shall be accompanied by a certificate
...
p.000063:
p.000063: 64 Adults with Incapacity (Scotland) Act 2000
p.000063: (asp 4) Schedule 3—Jurisdiction and private international law
p.000063:
p.000063: (4) If no objection is taken to the report, the accounts as adjusted by the Public Guardian shall be regarded as
p.000063: approved by him.
p.000063: (5) Where any objection taken to the report cannot be resolved between the guardian and the Public Guardian, the
p.000063: matter may be determined by the sheriff on an application by the guardian, and the sheriff’s decision shall be final.
p.000063: (6) Without prejudice to sub-paragraph (7), the guardian shall be liable to make good any deficiency revealed by
p.000063: the accounts as approved by the Public Guardian under sub- paragraph (1)(a).
p.000063: (7) Where a deficiency is revealed as mentioned in sub-paragraph (6), the Public Guardian may require the
p.000063: guardian to pay interest to the adult’s estate on the amount of the deficiency at the rate fixed by Act of
p.000063: Sederunt as applicable to a decree of the sheriff in respect of the period for which it appears that the deficiency has
p.000063: existed.
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063: General
p.000063: SCHEDULE 3
p.000063: (introduced by section 85)
p.000063: JURISDICTION AND PRIVATE INTERNATIONAL LAW
p.000063: 1 (1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application
p.000063: or other proceedings and otherwise carry out functions under this Act in relation to an adult if—
p.000063: (a) the adult is habitually resident in Scotland; or
p.000063: (b) property which is the subject of the application or proceedings or in respect of which functions are
p.000063: carried out under this Act is in Scotland; or
p.000063: (c) the adult, although not habitually resident in Scotland is there or property belonging to the adult
p.000063: is there and, in either case, it is a matter of urgency that the application is or the proceedings are dealt with; or
p.000063: (d) the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary
p.000063: nature and its effect limited to Scotland.
p.000063: (2) As from the ratification date, the Scottish judicial and administrative authorities shall, in addition to the
p.000063: jurisdiction mentioned in sub-paragraph (1) in the circumstances set out therein, have the jurisdiction
p.000063: mentioned in that sub-paragraph in the following circumstances—
p.000063: (a) the adult—
p.000063: (i) is a British citizen; and
p.000063: (ii) has a closer connection with Scotland than with any other part of the United Kingdom; and
p.000063: (b) Article 7 of the Convention has been complied with,
p.000063: or if the Scottish Central Authority, having received a request under Article 8 of the Convention from an
p.000063: authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as
p.000063: would, under this Act, have functions in relation to the adult, have agreed to the request.
p.000063:
p.000063: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000065: 65
p.000065: Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (3) As from the ratification date, the provisions of the Convention shall apply to the exercise of
p.000065: jurisdiction under this schedule where the adult—
p.000065: (a) is habitually resident in a Contracting State other than the United Kingdom; or
p.000065: (b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a
p.000065: Contracting State.
p.000065: (4) As from the ratification date, any application made to a Scottish judicial or
p.000065: administrative authority under this Act which—
p.000065: (a) relates to an adult who is not habitually resident in Scotland; and
p.000065: (b) does not require to be determined as a matter of urgency,
p.000065: shall be accompanied by information as to which State the adult habitually resides in and as to any other
p.000065: application relating to the adult which has been dealt with or is being made, or proceedings so relating which
p.000065: have been or are being brought, in any Contracting State other than the United Kingdom.
p.000065: (5) For the purposes of this paragraph, an adult—
p.000065: (a) whose habitual residence cannot be ascertained; or
p.000065: (b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual
p.000065: residence,
p.000065: shall be taken to be habitually resident in the State which he is in.
p.000065: Appropriate sheriff
p.000065: 2 (1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose
p.000065: sheriffdom—
p.000065: (a) in relation to a case falling within paragraph 1(1)(a), the adult is habitually resident;
p.000065: (b) in relation to a case falling within paragraph 1(1)(b), the property is located;
p.000065: (c) in relation to a case falling within paragraph 1(1)(c), the adult or property belonging to the adult
p.000065: is present;
p.000065: (d) in relation to a case falling within paragraph 1(1)(d), the adult is present.
p.000065: (2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship
p.000065: order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial
p.000065: or administrative authorities, jurisdiction; and—
p.000065: (a) no other court or authority has jurisdiction; or
p.000065: (b) another court or authority has jurisdiction but—
p.000065: (i) it would be unreasonable to expect an applicant to invoke it; or
p.000065: (ii) that court or authority has declined to exercise it.
p.000065: (3) Notwithstanding that any other judicial or administrative authority has jurisdiction under sub-paragraph (1)(a)
p.000065: to take measures, a sheriff shall have jurisdiction to take measures if—
p.000065: (a) the adult is present in the sheriffdom; and
p.000065: (b) the sheriff considers that it is necessary, in the interests of the adult, to take the measures immediately.
p.000065:
p.000065: 66 Adults with Incapacity (Scotland) Act 2000
p.000065: (asp 4) Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (4) Where, by operation of paragraph 1, jurisdiction falls to be exercised by a sheriff but the case is one
p.000065: appearing to fall outside sub-paragraphs (1) and (2), the sheriff having jurisdiction is the Sheriff of the
...
p.000065: (3) Such an authority shall, however, in the exercise of the powers conferred by section 18 of this Act, take into
p.000065: consideration to the extent possible the law which, as provided in paragraph 4, governs the power of attorney.
p.000065: (4) Where a measure for the protection of an adult has been taken in one State and is implemented
p.000065: in another, the conditions of its implementation are governed by the law of that other State.
p.000065: (5) Any question whether a person has authority by virtue of any enactment or rule of law to represent an adult
p.000065: shall be governed—
p.000065: (a) where such representation is for the purposes of the immediate personal welfare of the adult and the adult is in
p.000065: Scotland, by the law of Scotland; and
p.000065: (b) in any other case, by the law of the country in which the adult is habitually resident.
p.000065: 4 (1) The law governing the existence, extent, modification and extinction of continuing or welfare powers
p.000065: of attorney (including like powers, however described) shall be that of the State in which the granter habitually
p.000065: resided at the time of the grant of these powers.
p.000065: (2) Where, however, the granter of such a power of attorney so provides in writing, the law so applicable shall
p.000065: instead be the law of a State—
p.000065: (a) of which the granter is a national;
p.000065: (b) in which the granter was habitually resident before the grant; or
p.000065: (c) in which the property of the granter is located.
p.000065: (3) The manner of exercise of such a power shall be governed by the law of the State in which its exercise takes
p.000065: place.
p.000065: (4) The law of a State may be applied under sub-paragraph (2)(c) above only in respect of the property referred to
p.000065: in that provision.
p.000065: (5) Nothing in sub-paragraphs (1) and (2) prevents the sheriff from exercising powers under section 20 of this Act
p.000065: if a power of attorney is not being exercised so as to safeguard the welfare or property of the granter.
p.000065: (6) It is not an objection to the validity of any contract or other transaction between a person acting or
p.000065: purporting to act as the representative of an adult and any other person that the person so acting or purporting to act
p.000065: was not entitled so to act under the law of a country other than the country where the contract or other transaction
p.000065: was concluded.
p.000065: (7) Sub-paragraph (6) does not, however, apply where the other person knew or ought to have known that
p.000065: the entitlement so to act of the person acting or purporting to act as representative was governed by the law of
p.000065: that other country.
p.000065:
p.000065: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000067: 67
p.000067: Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (8) Sub-paragraph (6) applies only if the persons entering into the contract or other transaction were,
p.000067: when they did so, both (or all) in the same country.
p.000067: 5 Nothing in this schedule displaces any enactment or rule of law which has mandatory effect for the
p.000067: protection of an adult with incapacity in Scotland whatever law would otherwise be applicable.
p.000067: 6 Nothing in this schedule requires or enables the application in Scotland of any provision of the law of a
p.000067: country other than Scotland so as to produce a result which would be manifestly contrary to public policy.
p.000067: Recognition and enforcement
p.000067: 7 (1) Any measure taken under the law of a country other than Scotland for the personal welfare or
p.000067: the protection of property of an adult with incapacity shall, if one of the conditions specified in
p.000067: sub-paragraph (2) is met, be recognised by the law of Scotland.
p.000067: (2) These conditions are—
p.000067: (a) that the jurisdiction of the authority of the other country was based on the adult’s habitual residence there;
p.000067: (b) that the United Kingdom and the other country were, when the measure was taken, parties to the
p.000067: Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided
p.000067: for in the Convention.
p.000067: (3) Recognition of a measure may, however, be refused—
p.000067: (a) if, except in a case of urgency—
p.000067: (i) the authority which took it did so without the adult to whom it related being given an opportunity to be
p.000067: heard; and
p.000067: (ii) these circumstances constituted a breach of natural justice;
p.000067: (b) if it would be manifestly contrary to public policy to recognise the measure;
p.000067: (c) if the measure conflicts with any enactment or rule of law of Scotland which is mandatory whatever law would
p.000067: otherwise be applicable;
p.000067: (d) if the measure is incompatible with a later measure taken in Scotland or recognised by the law of
p.000067: Scotland;
p.000067: (e) if the measure would have the effect of placing the adult in an establishment in Scotland and—
...
p.000067: Co-operation, avoidance of conflict of jurisdiction and compliance with the Convention
p.000067: 11 (1) Her Majesty may by Order in Council confer on the Scottish Central Authority, and the Scottish judicial and
p.000067: administrative authorities such powers, and impose on them such duties additional, in each case, to those which they
p.000067: have under this Act, as are necessary or expedient to enable them to give effect in Scotland to the Convention on and
p.000067: after the ratification date.
p.000067: (2) An Order in Council under sub-paragraph (1) shall be subject to annulment in pursuance of a resolution of the
p.000067: Scottish Parliament.
p.000067: (3) A certificate delivered in pursuance of Article 38 of the Convention by a designated authority of a
p.000067: Contracting State other than Scotland shall be proof of the matters stated in it unless the contrary is proved.
p.000067: General
p.000067: 12 No provision of this schedule deriving from or giving effect to the Convention extends to any matter to
p.000067: which the Convention, by Article 4 thereof, does not apply.
p.000067: 13 Orders or regulations under this schedule shall be made by statutory instrument subject to annulment in
p.000067: pursuance of a resolution of the Scottish Parliament.
p.000067: 14 In this schedule—
p.000067: “the Convention” means the Hague Convention of 13 January 2000 on the International Protection of Adults;
p.000067: a “measure for the personal welfare or protection of the property” of an adult with incapacity includes any order,
p.000067: direction or decision effecting or relating to—
p.000067: (a) the determination of the incapacity and the institution of appropriate measures of protection;
p.000067: (b) the placing of the adult under the protection of a judicial or administrative authority;
p.000067: (c) guardianship, curatorship or analogous institutions;
p.000067: (d) the appointment and functions of any person or body having charge of the adult’s person or property or otherwise
p.000067: representing the adult;
p.000067: (e) the placement of the adult in an establishment or other place where the personal welfare of the
p.000067: adult is safeguarded;
p.000067: (f) the administration, conservation or disposal of the adult’s property; or
p.000067: (g) the authorisation of a specific intervention for the personal welfare or protection of the property of
p.000067: the adult;
p.000067:
p.000067: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000069: 69
p.000069: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: the “ratification date” means the date when the Convention is ratified as respects Scotland;
p.000069: the “Scottish Central Authority” means—
p.000069: (a) an authority designated under Article 28 of the Convention for the purposes of acting as such; or
p.000069: (b) if no authority has been so designated any authority appointed by the Scottish Ministers for the
p.000069: purposes of carrying out the functions to be carried out under this schedule by the Scottish Central Authority;
p.000069: the “Scottish judicial and administrative authorities” means the courts having functions under this Act
p.000069: and the Public Guardian, the Mental Welfare Commission, local authorities and supervisory bodies.
p.000069:
p.000069:
p.000069: SCHEDULE 4
p.000069: (introduced by section 88(1))
p.000069: CONTINUATION OF EXISTING CURATORS, TUTORS, GUARDIANS AND ATTORNEYS UNDER THIS ACT
p.000069: Curators and tutors
p.000069: 1 (1) On the relevant date, any person holding office as curator bonis to an adult shall become guardian of that
p.000069: adult with power to manage the property or financial affairs of the adult.
p.000069: (2) Where a person—
p.000069: (a) before the relevant date, holds office as curator bonis to a person who has not attained the age of
p.000069: 16 years and does not hold such office for the sole reason that the person has not attained the age of 16 years; or
p.000069: (b) after the relevant date, is appointed as curator bonis to such a person,
p.000069: he shall become guardian of that person when that person attains the age of 16 years, with power to manage his property
p.000069: or financial affairs.
p.000069: (3) Where any proceedings for the appointment of a curator bonis to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed curator bonis shall become guardian of that adult with
p.000069: power to manage the property or financial affairs of the adult.
p.000069: (4) On the relevant date, any person holding office as tutor-dative to an adult shall become guardian of that adult
p.000069: and shall continue to have the powers conferred by the court on his appointment as tutor-dative.
p.000069: (5) Where any proceedings for the appointment of a tutor-dative to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed tutor-dative shall become guardian of that adult with such
p.000069: power to manage the property, financial affairs or personal welfare of the adult as the court may
p.000069: determine.
p.000069: (6) On the relevant date, any person holding office as tutor-at-law to an adult shall become guardian of that adult
p.000069: with power to manage the property, financial affairs or personal welfare of the adult.
p.000069:
p.000069: 70 Adults with Incapacity (Scotland) Act 2000
p.000069: (asp 4) Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: (7) Where any proceedings for the appointment of a tutor-at-law to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed tutor-at-law shall become guardian of that adult
p.000069: with power to manage the property, financial affairs or personal welfare of the adult.
p.000069: Guardians
p.000069: 2 (1) On the relevant date, any person holding office as guardian of an adult under the 1984 Act shall become
p.000069: guardian of that adult under this Act and shall continue to have the powers set out in paragraphs (a) to (c) of section
p.000069: 41(2) of that Act notwithstanding the repeal of that section by this Act.
p.000069: (2) Where any proceedings for the appointment of such a guardian of an adult have been commenced and not
p.000069: determined before the relevant date, they shall be determined in accordance with the 1984 Act as it was in
p.000069: force immediately before that date; and any person appointed guardian shall become guardian of that adult under this
p.000069: Act with the powers set out in the said paragraphs (a) to (c) of section 41(2) of the 1984 Act.
p.000069: Proceedings relating to existing appointments
p.000069: 3 Where any proceedings in relation to the functions of an existing curator bonis, tutor- dative,
p.000069: tutor-at-law or guardian have been commenced and not determined before the relevant date, they shall be
p.000069: determined in accordance with the law as it was immediately before that date.
p.000069: Attorneys
p.000069: 4 (1) On the relevant date, any person holding office as—
p.000069: (a) an attorney under a contract of mandate or agency with powers relating solely to the property or financial
p.000069: affairs of an adult shall become a continuing attorney under this Act;
p.000069: (b) an attorney under a contract of mandate or agency with powers relating solely to the personal welfare of an adult
p.000069: shall become a welfare attorney under this Act;
p.000069: (c) an attorney under a contract of mandate or agency with powers relating both to the property and financial affairs
p.000069: and to the personal welfare of an adult shall become a continuing attorney and a welfare attorney under this Act.
p.000069: (2) Where, under the provisions of a contract of mandate or agency executed before the relevant date,
p.000069: a person is appointed as an attorney after that date he shall be a continuing attorney, a welfare attorney or a
p.000069: continuing and welfare attorney, as provided for in sub- paragraph (1), under this Act.
p.000069: (3) For the purposes of their application to persons who have become continuing attorneys by virtue of
p.000069: sub-paragraph (1)(a) or (c), the following provisions shall have effect as modified or disapplied by
p.000069: sub-paragraph (3).
p.000069: (4) Sections 6(2)(c)(i), 15, 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069: (5) For the purposes of their application to persons who have become welfare attorneys by virtue of sub-paragraph
p.000069: (1)(b) or (c) the following provisions shall have effect as modified or disapplied by sub-paragraph (5).
p.000069: (6) Sections 16(1) to (4) and (7), 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069:
p.000069: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000071: 71
p.000071: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000071:
p.000071: Managers
p.000071: 5 (1) Any managers of a hospital who have received and hold money and valuables on behalf of any person under
p.000071: section 94 of the 1984 Act may continue to do so under this Act for a period not exceeding 3 years from the relevant
p.000071: date.
p.000071: (2) This Act applies to managers as mentioned in sub-paragraph (1) notwithstanding that no certificate has been
p.000071: issued under section 37 in respect of the owner of the money or valuables.
p.000071: (3) Sections 35 and 38 shall not apply in the case of managers who continue to hold money by virtue of
p.000071: sub-paragraph (1).
p.000071: (4) Where the managers have authority from the Mental Welfare Commission to hold and manage money and other
p.000071: property in excess of the aggregate value mentioned in section 39 they may do so in relation to the money and
p.000071: valuables of any person which they continue to hold under sub-paragraph (1).
p.000071: Application of Act to persons who become guardians by virtue of this schedule
p.000071: 6 (1) For the purposes of their application to persons who have become guardians by virtue of this schedule,
p.000071: the following provisions shall have effect as modified or disapplied by this paragraph.
p.000071: (2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed
p.000071: as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law
p.000071: or guardian under the 1984 Act, as the case may be.
p.000071: (3) Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was
p.000071: a curator bonis, tutor dative or tutor-at-law to that adult; and, for the purpose of that application, for the
p.000071: reference in section 60(1) to a period in respect of which a guardianship order has been made or
p.000071: renewed there shall be substituted a reference to the period of 5 years from the relevant date or (in the case of a
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
...
p.000077: substituted—
p.000077: ““application for admission” has the meaning assigned to it by section 18 of this Act”;
p.000077: (b) in the appropriate place, there shall be inserted—
p.000077: ““guardian” includes a guardian (however called) appointed under the law of any country to, or entitled under
p.000077: the law of any country to act for an adult during his incapacity, if the guardianship is recognised by the law of
p.000077: Scotland;”;
p.000077: ““welfare attorney” includes a person granted, under a contract, grant or appointment governed by the law of any
p.000077: country, powers (however expressed) relating to the granter’s personal welfare and having effect during the
p.000077: granter’s incapacity;”.
p.000077:
p.000077: 78 Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4) Schedule 5—Minor and consequential amendments
p.000077:
p.000077: Insolvency Act 1986 (c.45)
p.000077: 18 In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
...
Social / Religion
Searching for indicator faith:
(return to top)
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
...
p.000019: from the date of the termination; and paragraphs (a) and
p.000019: (b) of section 26(4) shall apply in the case of a grant of interim authority under this subsection as
p.000019: they apply to the grant of an application under that section.
p.000019: (5) Subsections (1) and (2) are without prejudice to the right of the withdrawer to make subsequent
p.000019: applications under the said section 26 after the end of a valid period of authority to withdraw or, as
p.000019: the case may be, a suspension or termination of the authority.
p.000019: (6) A decision of the Public Guardian to reduce or extend a period of validity mentioned in subsection (1) or to
p.000019: suspend or terminate the authority of a withdrawer under subsection
p.000019: (3) may be appealed to the sheriff, whose decision shall be final; and the suspension or termination shall remain in
p.000019: force until the appeal is determined.
p.000019: (7) The authority of a withdrawer to withdraw funds under section 26 shall come to an end—
p.000019: (a) on the appointment of a guardian with powers relating to the funds or account in question;
p.000019: (b) on the granting of an intervention order relating to the funds or account in question; or
p.000019: (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in
p.000019: question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to
p.000019: an end of a withdrawer’s authority under this subsection.
p.000019: (8) In subsection (7) any reference to—
p.000019:
p.000019: 20 Adults with Incapacity (Scotland) Act 2000
p.000019: (asp 4) Part 3—Accounts and funds
p.000019:
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: 32 Joint accounts
p.000019: Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes
p.000019: incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other
p.000019: joint account holder may continue to operate the account unless—
p.000019: (a) the terms of the account provide otherwise; or
p.000019: (b) he is barred by an order of any court from so doing.
p.000019:
p.000019: 33 Transfer of funds
p.000019: (1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for
p.000019: authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds
p.000019: from that account to another specified account.
p.000019: (2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of
p.000019: that transfer; and the account to which funds are transferred may be specified as to kind of account.
p.000019: (3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be
p.000019: final.
p.000019:
p.000019: 34 Disapplication of Part 3
p.000019: (1) This Part shall not apply in the case of an adult in relation to whom—
p.000019: (a) there is a guardian or continuing attorney with powers relating to the funds or account in question;
p.000019: or
p.000019: (b) an intervention order has been granted relating to the funds or account in question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000021: 21
p.000021: Part 4—Management of residents’ finances
p.000021:
p.000021: PART 4
p.000021: MANAGEMENT OF RESIDENTS’ FINANCES
p.000021: 35 Application of Part 4
p.000021: (1) Subject to subsection (3), this Part applies to the management of the matters set out in section 39 relating to
p.000021: any resident of any of the following establishments—
p.000021: (a) a hospital or other premises mentioned in section 10(3)(a) of the Nursing Homes Registration (Scotland) Act 1938
p.000021: (c.73) (“the 1938 Act”);
p.000021: (b) a nursing home registered under the 1938 Act;
p.000021: (c) a hospital or similar institution which, but for section 6 of that Act, would require to be registered under the
p.000021: 1938 Act;
...
p.000025: 25
p.000025: Part 4—Management of residents’ finances
p.000025:
p.000025: (b) keep the funds of residents separate from the funds of the establishment;
p.000025: (c) comply with any requirements of the supervisory body as respects keeping the funds of residents
p.000025: separate or distinguishable from each other;
p.000025: (d) ensure that where, at any time, the total amount of funds held on behalf of any resident exceeds such sum as
p.000025: may from time to time be prescribed they shall be placed so as to earn interest;
p.000025: (e) keep records of all transactions made in relation to the funds held by them in respect of each
p.000025: resident for whose benefit the funds are held and managed and, in particular, ensure that details of the balance and
p.000025: any interest due to each resident can be ascertained at any time;
p.000025: (f) produce such records when requested to do so by the resident, his nearest relative or the supervisory body;
p.000025: (g) spend money only on items or services which are of benefit to the resident on whose behalf the
p.000025: funds are held;
p.000025: (h) not spend money on items or services which are provided by the establishment to or for such resident as part of
p.000025: its normal service;
p.000025: (i) make proper provision for indemnifying residents against any loss attributable to—
p.000025: (i) any act or omission on the part of the managers of the establishment in exercising the powers
p.000025: conferred by this Part or of others for whom the managers are responsible or attributable to any
p.000025: expenditure in breach of paragraph (g);
p.000025: (ii) any breach of duty, misuse of funds or failure to act reasonably and in good faith on the part of the managers.
p.000025:
p.000025: 42 Authorisation of named manager to withdraw from resident’s account
p.000025: (1) On an application in writing by the managers of an authorised establishment the supervisory body
p.000025: may issue a certificate of authority under this section in relation to any resident named in the application.
p.000025: (2) An application under subsection (1) shall specify one or more persons (being managers, officers or members
p.000025: of staff of the establishment) who shall exercise the authority conferred by this section.
p.000025: (3) A certificate of authority shall be signed by the officer of the supervisory body authorised by
p.000025: the body to do so and shall—
p.000025: (a) specify accounts or other funds of the resident;
p.000025: (b) name the persons specified in the application (the “authorised persons”);
p.000025: (c) specify the period of validity of the certificate of authority, being a period not exceeding the
p.000025: period of validity of the certificate issued under section 37(2).
p.000025: (4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is
p.000025: specified in the certificate of authority and the fundholder may make payments accordingly.
p.000025: (5) The supervisory body may at any time after it has issued a certificate of authority, revoke it
...
p.000027: the supervisory body shall revoke the registration.
p.000027: (3) Where a registration or a power to manage has been revoked under this section, the supervisory
p.000027: body shall within a period of 14 days from such revocation take over management of the residents’
p.000027: affairs and, where they do so, comply with the requirements imposed by and under this Part upon
p.000027: the managers of an authorised establishment.
p.000027: (4) The supervisory body shall, within the period of 3 months after taking over management of residents’ affairs
p.000027: under subsection (3), cause that management to be transferred to such other establishment, authority or person
p.000027: (who may be the resident) as they consider appropriate.
p.000027: (5) Where the supervisory body is satisfied that the circumstances mentioned in subsection (1)
p.000027: no longer apply in relation to an establishment whose power to manage it has revoked, it may annul the revocation
p.000027: of the power and, where necessary, of the registration.
p.000027: (6) Any decision of a supervisory body may be appealed to the sheriff, whose decision shall be final.
p.000027:
p.000027: 46 Disapplication of Part 4
p.000027: (1) This Part shall not apply to any of the matters which may be managed under section 39 if—
p.000027: (a) there is a guardian, continuing attorney, or other person with powers relating to that matter; or
p.000027: (b) an intervention order has been granted relating to that matter,
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
...
p.000033: (8) The sheriff may, on an application by—
p.000033: (a) the person authorised under the intervention order; or
p.000033: (b) the adult; or
p.000033: (c) any person claiming an interest in the property, financial affairs or personal welfare of the adult,
p.000033: make an order varying the terms of, or recalling, the intervention order or any other order made for the
p.000033: purposes of the intervention order.
p.000033: (9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the
p.000033: capacity to do so.
p.000033: (10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor
p.000033: containing the order to the Public Guardian who shall—
p.000033: (a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be
p.000033: prescribed; and
p.000033: (b) notify the adult, the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000033: which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors
p.000033: which include it) the Mental Welfare Commission.
p.000033: (11) A transaction for value between a person authorised under an intervention order, purporting to act as
p.000033: such, and a third party acting in good faith shall not be invalid on the ground only that—
p.000033: (a) the person acted outwith the scope of his authority;
p.000033:
p.000033: 34 Adults with Incapacity (Scotland) Act 2000
p.000033: (asp 4) Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: (b) the person failed to observe any requirement, whether substantive or procedural, imposed by or under this Act or
p.000033: by the sheriff or by the Public Guardian; or
p.000033: (c) there was any irregularity whether substantive or procedural in the authorisation of the person.
p.000033: (12) A person authorised under an intervention order may recover from the estate of the adult the amount of such
p.000033: reasonable outlays as he incurs in doing anything directed or authorised under the order.
p.000033: (13) Where a third party has acquired, in good faith and for value, title to any interest in
p.000033: heritable property from a person authorised under an intervention order that title shall not be challengeable on the
p.000033: ground only—
p.000033: (a) of any irregularity of procedure in the making of the intervention order; or
p.000033: (b) that the person authorised under the intervention order has acted outwith the scope of the authority.
p.000033: (14) Sections 64(2) and 67(3) and (4) shall apply to an intervention order as they apply to a guardianship order and,
p.000033: for this purpose, for any reference to a guardian there shall be substituted a reference to the person authorised under
p.000033: the order.
p.000033:
p.000033: 54 Records: intervention orders
p.000033: A person authorised under an intervention order shall keep records of the exercise of his powers.
p.000033:
p.000033: 55 Notification of change of address
p.000033: After particulars relating to an intervention order are entered in the register under section 53 the
p.000033: person authorised under the intervention order shall notify the Public Guardian—
p.000033: (a) of any change in his address; and
p.000033: (b) of any change in the address of the adult,
p.000033: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000033: 6(2)(b)(v) and notify the local authority and (in a case where the adult’s incapacity is by reason of,
p.000033: or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or
...
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000039: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000039: include it) the Mental Welfare Commission.
p.000039: (6) Joint guardians may, subject to subsection (7), exercise their functions individually, and each guardian shall
p.000039: be liable for any loss or injury caused to the adult arising out of—
p.000039: (a) his own acts or omissions; or
p.000039: (b) his failure to take reasonable steps to ensure that a joint guardian does not breach any duty of care or
p.000039: fiduciary duty owed to the adult,
p.000039: and where more than one such guardian is so liable they shall be liable jointly and severally.
p.000039: (7) A joint guardian shall, before exercising any functions conferred on him, consult the other joint
p.000039: guardians, unless—
p.000039: (a) consultation would be impracticable in the circumstances; or
p.000039: (b) the joint guardians agree that consultation is not necessary.
p.000039: (8) Where joint guardians disagree as to the exercise of their functions, either or both of them may
p.000039: apply to the sheriff for directions under section 3.
p.000039: (9) Where there are joint guardians, a third party in good faith is entitled to rely on the
p.000039: authority to act of any one or more of them.
p.000039:
p.000039: 63 Substitute guardian
p.000039: (1) In any case where an individual is appointed as guardian under section 58 the sheriff may, on an
p.000039: application, appoint to act as guardian in the event of the guardian so appointed becoming unable to
p.000039: act any individual or office holder who could competently be appointed by virtue of section 59.
p.000039: (2) In this Act an individual appointed under section 58 and an individual or office holder appointed under this
p.000039: section are referred to respectively as an “original guardian” and a “substitute guardian”.
p.000039: (3) The appointment of a substitute guardian shall be for the same period as the appointment of the original
p.000039: guardian under section 58(4).
p.000039:
p.000039: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000041: 41
p.000041: Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: (4) An application for appointment as a substitute guardian may be made at the time of the application for the
p.000041: appointment of the original guardian or at any time thereafter.
p.000041: (5) In making an order appointing an individual as substitute guardian with powers relating to the property or
p.000041: financial affairs of the adult the sheriff shall, except where—
p.000041: (a) the individual is unable to find caution; but
p.000041: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed substitute guardian,
p.000041: require an individual appointed as substitute guardian to find caution.
...
p.000043: in so far as the estate, payment or matter falls within the scope of the guardian’s authority.
p.000043: (3) A guardian having powers relating to the personal welfare of an adult may exercise these powers in
p.000043: relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
p.000043: (4) The guardian shall be personally liable under any transaction entered into by him—
p.000043: (a) without disclosing that he is acting as guardian of the adult; or
p.000043: (b) which falls outwith the scope of his authority,
p.000043: but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this
p.000043: Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect
p.000043: of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.
p.000043: (5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the
p.000043: transaction that authority had been granted by the guardian under section 64(1)(e), the transaction shall not
p.000043: be void only on the ground that the adult lacked capacity.
p.000043: (6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith
p.000043: shall not be invalid on the ground only that—
p.000043: (a) the guardian acted outwith the scope of his authority; or
p.000043:
p.000043: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000045: 45
p.000045: Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act,
p.000045: or by the sheriff or by the Public Guardian; or
p.000045: (c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
p.000045: (7) In subsections (3) and (4) any reference to a guardian shall include a reference to a guardian
p.000045: (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an
p.000045: adult during his incapacity, if the guardianship is recognised by the law of Scotland.
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
...
p.000051: of the appointment of the name of the officer responsible at any time for carrying out the functions and
p.000051: duties of guardian.
p.000051: (4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
p.000053: of the person or guardian if he is unaware of the termination or ending of that authority.
p.000053: (4) No title to any interest in heritable property acquired by a third party in good faith and for value from a
p.000053: person authorised under an intervention order or from a guardian having powers relating to the property
p.000053: or financial affairs of the adult shall be challengeable on the grounds only of the termination or
p.000053: coming to an end of the authority of the person or of the guardian.
p.000053: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000053: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000053: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000053:
p.000053: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000053: (1) The Public Guardian shall—
p.000053: (a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by
p.000053: him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the
p.000053: appointment of the guardian was recorded or registered under section 61; or
p.000053: (b) where an adult in respect of whom there was such a guardianship order has died,
p.000053: apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other
p.000053: document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
p.000053: suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest
p.000053: thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.
p.000053: (2) Subsection (1) shall be without prejudice to sections 69 and 82.
p.000053:
p.000053: 82 Limitation of liability
p.000053: (1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised
p.000053: under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of
p.000053: care or fiduciary duty owed to the adult if he has or they have—
p.000053: (a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
p.000053: principles.
p.000053: (2) In this section any reference to—
p.000053: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000053: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
...
p.000063: (5) The accounts shall be in such form as is prescribed by the Public Guardian and different forms may be
p.000063: prescribed for different cases or descriptions of case.
p.000063: (6) Where the estate of the adult includes a business or an interest in a business that part of the accounts
p.000063: which relates to the business or to the interest in the business shall be accompanied by a certificate
p.000063: from such person and in such form as may be prescribed by the Public Guardian, certifying the accuracy of that part of
p.000063: the accounts.
p.000063: (7) The accounts submitted to the Public Guardian under sub-paragraph (1) (other than any part to which a
p.000063: certificate as mentioned in sub-paragraph (6) relates) shall be audited by the Public Guardian or by an accountant
p.000063: appointed by, and responsible to, the Public Guardian for that purpose.
p.000063: Approval of accounts
p.000063: 8 (1) After the accounts of the guardian have been audited, the Public Guardian shall, if the accounts appear to
p.000063: him—
p.000063: (a) to be a true and fair view of the guardian’s management of the adult’s estate, approve them and fix
p.000063: the remuneration (if any) due to the guardian;
p.000063: (b) not to be a true and fair view of the guardian’s management of the adult’s estate, prepare a report as to the
p.000063: extent to which they do not represent such a true and fair view and adjusting the accounts accordingly.
p.000063: (2) The Public Guardian may approve the accounts, notwithstanding any minor inconsistencies or
p.000063: absence of full documentation in the accounts, if he is satisfied that the guardian acted reasonably and in good faith.
p.000063: (3) The Public Guardian shall send any report prepared by him under sub-paragraph (1)(b) to the guardian, who may
p.000063: object to anything contained in the report within 28 days of it being sent to him.
p.000063:
p.000063: 64 Adults with Incapacity (Scotland) Act 2000
p.000063: (asp 4) Schedule 3—Jurisdiction and private international law
p.000063:
p.000063: (4) If no objection is taken to the report, the accounts as adjusted by the Public Guardian shall be regarded as
p.000063: approved by him.
p.000063: (5) Where any objection taken to the report cannot be resolved between the guardian and the Public Guardian, the
p.000063: matter may be determined by the sheriff on an application by the guardian, and the sheriff’s decision shall be final.
p.000063: (6) Without prejudice to sub-paragraph (7), the guardian shall be liable to make good any deficiency revealed by
p.000063: the accounts as approved by the Public Guardian under sub- paragraph (1)(a).
p.000063: (7) Where a deficiency is revealed as mentioned in sub-paragraph (6), the Public Guardian may require the
p.000063: guardian to pay interest to the adult’s estate on the amount of the deficiency at the rate fixed by Act of
p.000063: Sederunt as applicable to a decree of the sheriff in respect of the period for which it appears that the deficiency has
p.000063: existed.
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063: General
p.000063: SCHEDULE 3
p.000063: (introduced by section 85)
p.000063: JURISDICTION AND PRIVATE INTERNATIONAL LAW
p.000063: 1 (1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application
...
Searching for indicator conviction:
(return to top)
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
p.000055: welfare of an adult to ill-treat or wilfully neglect that adult.
p.000055: (2) A person guilty of an offence under subsection (1) shall be liable—
p.000055: (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory
p.000055: maximum or both;
p.000055: (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
p.000055:
p.000055: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000055: (1) Parts 1, 5, 6 and 7 shall apply to a guardian appointed under section 57(2)(c) or section 58(1)
p.000055: of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Act”) as they apply to a guardian with powers
p.000055: relating to the personal welfare of an adult appointed under Part 6; and accordingly the 1995 Act shall be
p.000055: amended as follows.
p.000055: (2) After section 58 there shall be inserted—
p.000055: “58A Application of Adults with Incapacity (Scotland) Act 2000
p.000055: (1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with
p.000055: Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—
p.000055: (a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this
p.000055: section referred to as a “guardianship order”) whether appointed before or after the coming into force of these
p.000055: provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed
p.000055: under section 58 of that Act;
p.000055: (b) to a person authorised under an intervention order under section 60A of this Act as they apply to a person so
p.000055: authorised under section 53 of that Act.
...
Social / Youth/Minors
Searching for indicator minor:
(return to top)
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
p.000001: (1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in
p.000001: the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any
p.000001: proceedings under this Act for or in connection with an adult.
p.000001: (2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or
p.000001: effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot
p.000001: reasonably be achieved without the intervention.
p.000001: (3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention
...
p.000057: “the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).
p.000057: (2) Where—
p.000057: (a) an adult has no spouse or has a spouse but subsection (3) applies; and
p.000057: (b) a person of the same sex as the adult—
p.000057:
p.000057: 58 Adults with Incapacity (Scotland) Act 2000
p.000057: (asp 4) Part 7—Miscellaneous
p.000057:
p.000057: (i) is and has been, for a period of not less than 6 months, living with the adult in a relationship which has the
p.000057: characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife; or
p.000057: (ii) if the adult is for the time being an in-patient in a hospital, had so lived with the adult until
p.000057: the adult was admitted;
p.000057: then that person shall be treated as the nearest relative.
p.000057: (3) This subsection applies where the adult’s spouse is permanently separated from the adult, either by
p.000057: agreement or under an order of a court, or has deserted, or been deserted by, the adult for a period and the desertion
p.000057: persists.
p.000057: (4) For the purposes of this Act, a person is bankrupt if his estate has been sequestrated for insolvency or he has
p.000057: granted a trust deed which has become a protected trust deed under Schedule 5 to the Bankruptcy (Scotland) Act
p.000057: 1985 (c.66), or he has been adjudged bankrupt in England and Wales, or he has become bankrupt (however expressed)
p.000057: under the law of any other country.
p.000057:
p.000057: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000057: (1) Schedule 4, which contains provisions relating to the continuation of existing powers, shall have effect.
p.000057: (2) Schedule 5, which contains minor amendments and amendments consequential on the provisions of this Act,
p.000057: shall have effect.
p.000057: (3) The enactments mentioned in schedule 6 are hereby repealed to the extent specified in the second column of that
p.000057: schedule.
p.000057:
p.000057: 89 Citation and commencement
p.000057: (1) This Act may be cited as the Adults with Incapacity (Scotland) Act 2000.
p.000057: (2) This Act shall come into force on such day as the Scottish Ministers may by order made by statutory
p.000057: instrument appoint and different days may be appointed for different purposes.
p.000057: (3) Without prejudice to the provisions of schedule 4, an order under subsection (2) may make such
p.000057: transitional provisions and savings as appear to the Scottish Ministers necessary or expedient in connection
p.000057: with any provision brought into force by the order; and where it does so, the statutory instrument under which it is
p.000057: made shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000057:
p.000057: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000059: 59
p.000059: Schedule 1—Managers of an establishment
p.000059:
p.000059: SCHEDULE 1
p.000059: (introduced by section 35)
p.000059: MANAGERS OF AN ESTABLISHMENT
p.000059: 1 For the purposes of Part 4 “the managers” of an establishment means—
p.000059: (a) in relation to a hospital vested in the Scottish Ministers under the National Health Service (Scotland) Act
p.000059: 1978 (c.29), the Health Board responsible for the administration of that hospital;
p.000059: (b) in relation to a hospital managed by a National Health Service trust established under section 12A of the
...
p.000063: (b) dispense with the need for the submission of accounts by the guardian; or
p.000063: (c) require the guardian to do anything which the Public Guardian thinks appropriate in lieu of submitting accounts.
p.000063: (5) The accounts shall be in such form as is prescribed by the Public Guardian and different forms may be
p.000063: prescribed for different cases or descriptions of case.
p.000063: (6) Where the estate of the adult includes a business or an interest in a business that part of the accounts
p.000063: which relates to the business or to the interest in the business shall be accompanied by a certificate
p.000063: from such person and in such form as may be prescribed by the Public Guardian, certifying the accuracy of that part of
p.000063: the accounts.
p.000063: (7) The accounts submitted to the Public Guardian under sub-paragraph (1) (other than any part to which a
p.000063: certificate as mentioned in sub-paragraph (6) relates) shall be audited by the Public Guardian or by an accountant
p.000063: appointed by, and responsible to, the Public Guardian for that purpose.
p.000063: Approval of accounts
p.000063: 8 (1) After the accounts of the guardian have been audited, the Public Guardian shall, if the accounts appear to
p.000063: him—
p.000063: (a) to be a true and fair view of the guardian’s management of the adult’s estate, approve them and fix
p.000063: the remuneration (if any) due to the guardian;
p.000063: (b) not to be a true and fair view of the guardian’s management of the adult’s estate, prepare a report as to the
p.000063: extent to which they do not represent such a true and fair view and adjusting the accounts accordingly.
p.000063: (2) The Public Guardian may approve the accounts, notwithstanding any minor inconsistencies or
p.000063: absence of full documentation in the accounts, if he is satisfied that the guardian acted reasonably and in good faith.
p.000063: (3) The Public Guardian shall send any report prepared by him under sub-paragraph (1)(b) to the guardian, who may
p.000063: object to anything contained in the report within 28 days of it being sent to him.
p.000063:
p.000063: 64 Adults with Incapacity (Scotland) Act 2000
p.000063: (asp 4) Schedule 3—Jurisdiction and private international law
p.000063:
p.000063: (4) If no objection is taken to the report, the accounts as adjusted by the Public Guardian shall be regarded as
p.000063: approved by him.
p.000063: (5) Where any objection taken to the report cannot be resolved between the guardian and the Public Guardian, the
p.000063: matter may be determined by the sheriff on an application by the guardian, and the sheriff’s decision shall be final.
p.000063: (6) Without prejudice to sub-paragraph (7), the guardian shall be liable to make good any deficiency revealed by
p.000063: the accounts as approved by the Public Guardian under sub- paragraph (1)(a).
p.000063: (7) Where a deficiency is revealed as mentioned in sub-paragraph (6), the Public Guardian may require the
p.000063: guardian to pay interest to the adult’s estate on the amount of the deficiency at the rate fixed by Act of
p.000063: Sederunt as applicable to a decree of the sheriff in respect of the period for which it appears that the deficiency has
p.000063: existed.
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063: General
p.000063: SCHEDULE 3
p.000063: (introduced by section 85)
...
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
p.000071: they would have continued had he not become a guardian by virtue of this schedule to this Act.
p.000071: (5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall
p.000071: be construed as including references to the local authority.
p.000071: (6) Schedule 2 shall apply only—
p.000071: (a) in a case where; and
p.000071: (b) to the extent that,
p.000071: the Public Guardian has determined that it should apply.
p.000071: (7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make
p.000071: such a determination, may be appealed to the sheriff, whose decision shall be final.
p.000071: (8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by
p.000071: virtue of this schedule.
p.000071:
p.000071: 72 Adults with Incapacity (Scotland) Act 2000
p.000071: (asp 4) Schedule 5—Minor and consequential amendments
p.000071:
p.000071: Transitional Provisions
p.000071: 7 Until Part 6 comes into force—
p.000071: (a) the references in section 23(1)(c) to a guardian shall be omitted;
p.000071: (b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a
p.000071: reference to the appointment of a curator bonis or tutor- dative or tutor-at-law with powers relating to the
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
p.000071: (d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.
p.000071: Interpretation
p.000071: 8 In this schedule the “relevant date” in relation to any paragraph in which it appears means
p.000071: the date of coming into force of that paragraph.
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071: General
p.000071: SCHEDULE 5
p.000071: (introduced by section 88(2))
p.000071: MINOR AND CONSEQUENTIAL AMENDMENTS
p.000071: 1 With effect from the commencement of this paragraph any reference in any enactment or document to a
p.000071: curator bonis or a tutor or curator of a person of or over the age of 16 years shall be construed as a reference to a
p.000071: guardian with similar powers appointed to that person under this Act.
p.000071: Defence Act 1842 (c.94)
p.000071: 2 (1) In section 15 of the Defence Act 1842—
p.000071: (a) after “nonage” in both places there shall be inserted “or mental incapacity”;
p.000071: (b) “or not of whole mind” shall be repealed;
p.000071: (c) for “out of prison, within this land, or of whole mind” there shall be substituted “within this land”.
p.000071: (2) In section 27 of that Act for “lunacy” there shall be substituted “mental incapacity”.
p.000071: Judicial Factors Act 1849 (c.51)
p.000071: 3 In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward” there
p.000071: shall be substituted “coming to an end of the situation giving rise to it”.
p.000071: Improvement of Land Act 1864 (c.114)
p.000071: 4 (1) In section 24 of the Improvement of Land Act 1864—
p.000071: (a) “tutors,”, “curators,” “tutor,” and “curator,” shall be repealed;
p.000071:
p.000071: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000073: 73
p.000073: Schedule 5—Minor and consequential amendments
p.000073:
p.000073: (b) for “persons suffering from mental disorder within the meaning of the Mental Health (Scotland) Act,
p.000073: 1960” there shall be substituted “adults who are incapable within the meaning of the Adults with Incapacity (Scotland)
p.000073: Act 2000 (asp 4)”.
p.000073: (2) In section 68 of that Act for “Mental Health (Scotland) Act 1984” there shall be substituted
p.000073: “Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000073: Titles to Land (Consolidation) (Scotland) Act 1868 (c.101)
p.000073: 5 (1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder
p.000073: within the meaning of the Mental Health (Scotland) Act 1960” there shall be substituted “mental or other incapacity”.
p.000073: (2) In section 62 of that Act for “of insane mind” there shall be substituted “mental or other incapacity”.
p.000073: Judicial Factors (Scotland) Act 1889 (c.39)
p.000073: 6 (1) In section 2 of the Judicial Factors (Scotland) Act 1889 at the beginning there shall be inserted “Without
p.000073: prejudice to section 6(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (Accountant of Court to be Public
p.000073: Guardian)”.
p.000073: (2) In section 6 of that Act, in the proviso, after “apply to” there shall be inserted “guardians appointed under
p.000073: the Adults with Incapacity (Scotland) Act 2000 (asp 4), to”.
p.000073: Heritable Securities (Scotland) Act 1894 (c.44)
...
p.000073: (a) after “(b) trustees” there shall be inserted—
p.000073: “(c) the person entitled to act as the legal representative of any such person”;
p.000073: (b) “tutors, curators,” shall be repealed.
p.000073: National Assistance Act 1948 (c.29)
p.000073: 8 In section 49 of the National Assistance Act 1948 as it applies to Scotland—
p.000073: (a) immediately before “the council” where last occurring there shall be inserted “or applies for an intervention
p.000073: order or for appointment as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4)”;
p.000073: (b) immediately before “in so far as” there shall be inserted “or his functions under the intervention order or as
p.000073: guardian”.
p.000073: Offices, Shops and Railway Premises Act 1963 (c.41)
p.000073: 9 In section 90(1) of the Offices, Shops and Railway Premises Act 1963 in the definition of “owner” for “,
p.000073: tutor or curator” there shall be substituted “or person entitled to act as legal representative of a person under
p.000073: disability by reason of nonage or mental or other incapacity”.
p.000073: Social Work (Scotland) Act 1968 (c.49)
p.000073: 10 In section 64A(1) of the Social Work (Scotland) Act 1968 “and” between paragraphs (c) and (d) shall be
p.000073: repealed and after paragraph (d) there shall be inserted “and
p.000073: (e) an application for registration of an establishment under section 61B of this Act”.
p.000073:
p.000073: 74 Adults with Incapacity (Scotland) Act 2000
p.000073: (asp 4) Schedule 5—Minor and consequential amendments
p.000073:
p.000073: 11 In section 68(1) of that Act after “persons” where second occurring there shall be inserted
p.000073: “or, where the establishment is one which has power to manage residents’ financial affairs, for the
p.000073: purpose of ensuring that such financial affairs are being properly managed,”.
p.000073: Medicines Act 1968 (c.67)
p.000073: 12 In section 72 of the Medicines Act 1968—
p.000073: (a) in subsection (1) for “curator bonis” there shall be substituted “guardian”;
p.000073: (b) in subsections (3)(d) and (4)(c) “curator bonis,” shall be repealed.
p.000073: Sheriff Courts (Scotland) Act 1971 (c.58)
p.000073: 13 In section 32(1) of the Sheriff Courts (Scotland) Act 1971 after paragraph (j) there shall be inserted—
p.000073: “(k) prescribing the procedure to be followed in appointing a person under section 3(4) of the Adults
p.000073: with Incapacity (Scotland) Act 2000 (asp 4) and the functions of such a person.”.
p.000073: Land Registration (Scotland) Act 1979 (c.33)
p.000073: 14 In section 12(3) of the Land Registration (Scotland) Act 1979 after paragraph (k) there shall be
p.000073: inserted—
p.000073: “(kk) the loss is suffered by an adult within the meaning of the Adults with Incapacity (Scotland) Act
p.000073: 2000 (asp 4) because of the operation of sections 24, 53, 67, 77 or 79 of that Act, or by any person who
p.000073: acquires any right, title or interest from that adult;”.
p.000073: Solicitors (Scotland) Act 1980 (c.46)
p.000073: 15 In section 18(1) of the Solicitors (Scotland) Act 1980—
p.000073: (a) in paragraph (a) “or becomes subject to guardianship” shall be repealed;
p.000073: (b) for paragraph (b) there shall be substituted—
p.000073: “(b) a guardian is appointed to a solicitor under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4);”.
p.000073: Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)
p.000073: 16 In group C of Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland)
p.000073: Act 1980 for paragraphs (b) and (c) there shall be substituted—
p.000073: “(b) persons for the time being subject to guardianship under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4).”.
p.000073: Mental Health (Scotland) Act 1984 (c.36)
p.000073: 17 (1) In section 3 of the Mental Health (Scotland) Act 1984—
p.000073: (a) in subsection (1) “guardianship or” shall be repealed;
p.000073: (b) in subsection (2) in paragraph (b) “or who are subject to guardianship” shall be repealed.
p.000073: (2) In section 5(2) of that Act “and the guardian of any person subject to guardianship under this Act” shall be
p.000073: repealed.
p.000073: (3) In section 19 of that Act—
p.000073:
p.000073: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000075: 75
p.000075: Schedule 5—Minor and consequential amendments
p.000075:
p.000075: (a) in subsection (1) for “either by the nearest relative of the patient or by a mental health officer” there shall
p.000075: be substituted “by the nearest relative of the patient, by a mental health officer, or by a guardian or welfare
p.000075: attorney of the patient who has powers to do so”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be,”;
p.000075: (c) in subsection (3) after “relative” in both places there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be”;
p.000075: (d) in subsection (4) after “patient” where second occurring there shall be inserted “or by a guardian or welfare
p.000075: attorney of the patient”;
p.000075: (e) in subsection (5)(b) after “relative” there shall be inserted “and any guardian or welfare attorney”.
p.000075: (4) In section 20(1)(a) of that Act for “or his nearest relative” there shall be substituted “, his nearest
p.000075: relative, guardian or welfare attorney, as the case may be”.
p.000075: (5) In section 21(2)(b) of that Act—
p.000075: (a) after “relative” where first occuring there shall be inserted “, guardian or welfare attorney, as the case may
p.000075: be”;
...
p.000075: (8) In section 26 of that Act—
p.000075: (a) in subsection (1)(b) after “patient” there shall be inserted “, by any guardian or welfare attorney of
p.000075: the patient who has power so to consent,”;
p.000075: (b) in subsection (4)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney “ and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (9) In section 26A of that Act—
p.000075: (a) in subsection (4) after “relative” there shall be inserted “or any guardian or welfare attorney who
p.000075: has powers to do so”;
p.000075: (b) in subsection (6)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney” and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (10) In section 29 of that Act—
p.000075: (a) in subsection (2) after “relative” there shall be inserted “, to any guardian or welfare attorney”;
p.000075:
p.000075: 76 Adults with Incapacity (Scotland) Act 2000
p.000075: (asp 4) Schedule 5—Minor and consequential amendments
p.000075:
p.000075: (b) in subsection (4) after “relative” there shall be inserted “, guardian or welfare attorney”.
p.000075: (11) In section 30(5) of that Act after “relative” there shall be inserted “and any guardian or welfare attorney of
p.000075: his”.
p.000075: (12) In section 31B(3) of that Act after “relative” there shall be inserted “, and any welfare attorney,”.
p.000075: (13) In section 33(5) of that Act for “or by the nearest relative” there shall be substituted “, by the nearest
p.000075: relative or by any guardian or welfare attorney who has powers to do so”.
p.000075: (14) In section 34 of that Act—
p.000075: (a) in subsection (1) after “relative” wherever occurring there shall be inserted “, or guardian or welfare attorney
p.000075: with powers to do so”;
p.000075: (b) in subsection (2) after “relative” where first occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be” and after “relative” where second occurring there shall be inserted “,
p.000075: guardian or welfare attorney”;
p.000075: (c) in subsection (3) after “relative” there shall be inserted “or by any guardian or welfare attorney”.
p.000075: (15) In section 35 of that Act—
p.000075: (a) in subsection (1) for “or his nearest relative or both” there shall be substituted “, his nearest relative, his
...
p.000075: (16) In section 35B of that Act—
p.000075: (a) in subsection (3)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (4) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (17) In section 35C of that Act—
p.000075: (a) in subsection (3)(b)(i) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (4) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (18) In section 35D of that Act—
p.000075: (a) in subsection (1)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (19) In section 35E of that Act—
p.000075:
p.000075: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000077: 77
p.000077: Schedule 5—Minor and consequential amendments
p.000077:
p.000077: (a) in subsection (3)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (4)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (c) in subsection (5) after “relative” there shall be inserted “ and any welfare attorney of the patient,”.
p.000077: (20) In section 35G of that Act—
p.000077: (a) in subsection (2)(a) at the beginning there shall be inserted “any guardian of the patient, and” and after
p.000077: “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (3) after “relative” there shall be inserted “ and any welfare attorney of the patient,”.
p.000077: (21) In section 35I of that Act—
p.000077: (a) in subsection (2)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (3) after “relative” there shall be inserted “ and any welfare attorney of the patient,”;
p.000077: (c) in subsection (5)(a) at the beginning there shall be inserted “any guardian of the patient, and” and after
...
p.000077: substituted “but for the appointment of a guardian under the Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4)”.
p.000077: (23) In section 95 of that Act—
p.000077: (a) in subsection (1) after “tutor” there shall be inserted “, guardian”;
p.000077: (b) in subsection (2) after “tutor” there shall be inserted “, guardian”.
p.000077: (24) In section 125(1) of that Act—
p.000077: (a) for the definition of “application for admission” and “guardianship application” there shall be
p.000077: substituted—
p.000077: ““application for admission” has the meaning assigned to it by section 18 of this Act”;
p.000077: (b) in the appropriate place, there shall be inserted—
p.000077: ““guardian” includes a guardian (however called) appointed under the law of any country to, or entitled under
p.000077: the law of any country to act for an adult during his incapacity, if the guardianship is recognised by the law of
p.000077: Scotland;”;
p.000077: ““welfare attorney” includes a person granted, under a contract, grant or appointment governed by the law of any
p.000077: country, powers (however expressed) relating to the granter’s personal welfare and having effect during the
p.000077: granter’s incapacity;”.
p.000077:
p.000077: 78 Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4) Schedule 5—Minor and consequential amendments
p.000077:
p.000077: Insolvency Act 1986 (c.45)
p.000077: 18 In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
...
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
p.000077: curator” there shall be substituted “or person entitled to act as the legal representative of a person
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
p.000077:
p.000077: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000079: 79
p.000079: Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) in subsection (2)(c) for first “person” there shall be substituted “person’s personal welfare”;
p.000079: (b) in subsection (4) after “58(1),” there shall be inserted “58(1A),”;
p.000079: (c) at the end there shall be added—
p.000079: “(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this
p.000079: section.”.
p.000079: (2) In section 58 of that Act—
p.000079: (a) for subsection (1) there shall be substituted—
p.000079: “(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an
p.000079: offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court—
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
p.000079: character and antecedents of the offender and to the other available methods of dealing with him, that the
p.000079: most suitable method of disposing of the case is by means of an order under this subsection,
p.000079: the court may, subject to subsection (2) below, by order authorise his admission to and detention
p.000079: in such hospital as may be specified in the order.
p.000079: (1A) Where a person is convicted as mentioned in subsection (1) above and the court is satisfied—
p.000079: (a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements
p.000079: imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in
p.000079: section 58(1)(a) of that Act apply in relation to the offender;
p.000079: (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his
p.000079: personal welfare to be safeguarded or promoted,
p.000079: the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the
p.000079: guardianship of such local authority or of such other person approved by a local authority as may be specified in the
p.000079: order.”;
p.000079: (b) in subsections (2), (3) and (10) for “subsection (1)” there shall be substituted “subsection (1) or
p.000079: (1A)”;
p.000079: (c) in subsections (5) and (7) after “subsection (1)” there shall be inserted “or paragraph (a) of
p.000079: subsection (1A),”;
p.000079: (d) for subsection (6) there shall be substituted—
p.000079: “(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act
p.000079: referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
p.000079:
p.000079: 80 Adults with Incapacity (Scotland) Act 2000
p.000079: (asp 4) Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) on the report of a mental health officer (complying with any requirements imposed by
p.000079: section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the
p.000079: general appropriateness of the order sought, based on an interview and assessment of the person
p.000079: carried out not more than 30 days before it makes the order, that it is necessary in the interests of
p.000079: the personal welfare of the person that he should be placed under guardianship;
p.000079: (b) that any person nominated to be appointed a guardian is suitable to be so appointed;
p.000079: (c) that the authority or person is willing to receive that person into guardianship; and
p.000079: (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland)
p.000079: Act 2000 (asp 4), in force relating to the person.”;
p.000079: (e) at the end there shall be added—
p.000079: “(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this
p.000079: section.”.
p.000079: (3) After section 60 of that Act there shall be inserted—
p.000079: “60A Intervention orders
p.000079: The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section
...
Social / parents
Searching for indicator parents:
(return to top)
p.000039: case may be, registering of it in the Land Register of Scotland.
p.000039: (4) An application under subsection (3) shall contain—
p.000039: (a) the name and address of the guardian;
p.000039: (b) a statement that the guardian has powers relating to each property specified in the order;
p.000039: (c) a copy of the interlocutor.
p.000039: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000039: (a) record the interlocutor in the Register; and
p.000039: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000039: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000039: sheet of the property to show the interlocutor.
p.000039: (7) The guardian shall send the endorsed interlocutor or, as the case may be, the updated Land Certificate or
p.000039: an office copy thereof to the Public Guardian who shall enter prescribed particulars of it in the register
p.000039: maintained by him under section 6(2)(b)(iv).
p.000039:
p.000039: Joint and substitute guardians
p.000039: 62 Joint guardians
p.000039: (1) An application may be made to the sheriff—
p.000039: (a) by two or more individuals seeking appointment, for their appointment as joint guardians to an adult;
p.000039: or
p.000039: (b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly
p.000039: with one or more existing guardians.
p.000039: (2) Joint guardians shall not be appointed to an adult unless—
p.000039: (a) the individuals so appointed are parents, siblings or children of the adult; or
p.000039: (b) the sheriff is satisfied that, in the circumstances, it is appropriate to appoint as joint
p.000039: guardians individuals who are not related to the adult as mentioned in paragraph (a).
p.000039:
p.000039: 40 Adults with Incapacity (Scotland) Act 2000
p.000039: (asp 4) Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: (3) Where an application is made under subsection (1)(a), sections 58 and 59 shall apply for the purposes of the
p.000039: disposal of that application as they apply for the disposal of an application under section 57.
p.000039: (4) In deciding if an individual is suitable for appointment as additional guardian under subsection
p.000039: (1)(b), the sheriff shall have regard to the matters set out in section 59(3) to (5).
p.000039: (5) Where the sheriff appoints an additional guardian under this section, the sheriff clerk shall send a
p.000039: copy of the order appointing him to the Public Guardian who shall—
p.000039: (a) enter prescribed particulars in the register maintained by him under section 6(2) (b)(iv) of this Act;
p.000039: (b) when satisfied that the additional guardian has found caution if so required, issue a certificate of
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
...
Social / philosophical differences/differences of opinion
Searching for indicator opinion:
(return to top)
p.000003:
p.000003: 4 Adults with Incapacity (Scotland) Act 2000
p.000003: (asp 4) Part 1—General
p.000003:
p.000003: (5) Safeguarding the interests of a person shall, for the purposes of subsection (4), include conveying his views
p.000003: so far as they are ascertainable to the sheriff; but if the sheriff considers that it is inappropriate
p.000003: that a person appointed to safeguard the interests of another under this section should also convey that
p.000003: other’s views to the sheriff, the sheriff may appoint another person for that latter purpose only.
p.000003: (6) The sheriff may, on an application by—
p.000003: (a) the person authorised under the order;
p.000003: (b) the adult; or
p.000003: (c) any person entitled to apply for the order,
p.000003: make an order varying the terms of an order granted under subsection (2)(a).
p.000003:
p.000003: 4 Power of Court of Session or sheriff with regard to nearest relative
p.000003: (1) On an application by an adult, the court may, having regard to section 1 and being satisfied
p.000003: that to do so will benefit the adult, make an order that—
p.000003: (a) certain information shall not be disclosed, or intimation of certain applications shall not be given,
p.000003: to the nearest relative of the adult;
p.000003: (b) the functions of the nearest relative of the adult shall, during the continuance in force of the order, be
p.000003: exercised by a person, specified in the application, who is not the nearest relative of the adult but who—
p.000003: (i) is a person who would otherwise be entitled to be the nearest relative in terms of this Act;
p.000003: (ii) in the opinion of the court is a proper person to act as the nearest relative; and
p.000003: (iii) is willing to so act; or
p.000003: (c) no person shall, during the continuance in force of the order, exercise the functions of the nearest
p.000003: relative.
p.000003: (2) An order made under subsection (1) shall apply only to the exercise of the functions under this Act
p.000003: of the nearest relative.
p.000003: (3) The court may, on an application by an adult, make an order varying the terms of an order granted under
p.000003: subsection (1).
p.000003: (4) No application shall be made under this section by an adult who is not incapable within the meaning of this Act
p.000003: at the time of making the application.
p.000003:
p.000003: 5 Safeguarding of interests in Court of Session appeals or proceedings
p.000003: (1) In determining any appeal or in any other proceedings under this Act the Court of Session—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the appeal or other proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the second
p.000003: mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).
p.000003:
p.000003: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000005: 5
p.000005: Part 1—General
p.000005:
p.000005: (2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views
p.000005: so far as they are ascertainable to the court; but if the court considers that it is inappropriate
...
p.000027: (b) an intervention order has been granted relating to that matter,
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
p.000027: (b) has certified in accordance with subsection (5) that he is of this opinion.
p.000027: (2) Without prejudice to any authority conferred by any other enactment or rule of law, and subject to sections 49
p.000027: and 50 and to the following provisions of this section, the medical practitioner primarily responsible for the
p.000027: medical treatment of the adult shall have, during the period specified in the certificate, authority to do what
p.000027: is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or
p.000027: mental health of the adult.
p.000027: (3) The authority conferred by subsection (2) shall be exercisable also by any other person who is authorised by
p.000027: the medical practitioner primarily responsible for the medical treatment of the adult to carry out medical
p.000027: treatment and who is acting—
p.000027: (a) on his behalf under his instructions; or
p.000027: (b) with his approval or agreement.
p.000027: (4) In this Part “medical treatment” includes any procedure or treatment designed to safeguard or
p.000027: promote physical or mental health.
p.000027: (5) A certificate for the purposes of subsection (1) shall be in the prescribed form and shall specify the period
p.000027: during which the authority conferred by subsection (2) shall subsist, being a period which—
p.000027: (a) the medical practitioner primarily responsible for the medical treatment of the adult considers
p.000027: appropriate to the condition or circumstances of the adult; but
p.000027: (b) does not exceed one year from the date of the examination on which the certificate is based.
p.000027: (6) If after issuing a certificate, the medical practitioner primarily responsible for the medical
p.000027: treatment of the adult is of the opinion that the condition or circumstances of the adult have changed he may—
p.000027: (a) revoke the certificate;
p.000027: (b) issue a new certificate specifying such period not exceeding one year from the date of revocation
p.000027: of the old certificate as he considers appropriate to the new condition or circumstances of the adult.
p.000027: (7) The authority conferred by subsection (2) shall not authorise—
p.000027: (a) the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the
p.000027: circumstances;
p.000027: (b) action which would be inconsistent with any decision by a competent court;
p.000027: (c) placing an adult in a hospital for the treatment of mental disorder against his will.
p.000027: (8) The authority conferred by subsection (2) shall not authorise medical treatment prescribed
p.000027: in regulations made under section 48.
p.000027:
p.000027: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000029: 29
p.000029: Part 5—Medical treatment and research
p.000029:
p.000029: (9) Subject to subsection (10), where any question as to the authority of any person to provide
p.000029: medical treatment in pursuance of subsection (2)—
p.000029: (a) is the subject of proceedings in any court (other than for the purposes of any application to the
p.000029: court made under regulations made under section 48); and
p.000029: (b) has not been determined,
p.000029: medical treatment authorised by subsection (2) shall not be given unless it is authorised by any other enactment or
...
p.000029: (b) the medical practitioner primarily responsible for the medical treatment of the adult is aware of the
p.000029: appointment or, as the case may be, authorisation; and
p.000029: (c) it would be reasonable and practicable for that medical practitioner to obtain the consent of the guardian,
p.000029: welfare attorney or person authorised under the intervention order, as the case may be, to any proposed
p.000029: medical treatment but he has failed to do so.
p.000029: (3) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is no
p.000029: disagreement as to the medical treatment of the adult, any person having an interest in the personal welfare
p.000029: of the adult may appeal the decision as to the medical treatment to the Court of Session.
p.000029: (4) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is a
p.000029: disagreement as to the medical treatment of the adult, the medical practitioner shall request the Mental Welfare
p.000029: Commission to nominate a medical practitioner (the “nominated medical practitioner”) from the list established and
p.000029: maintained by them under subsection (9) to give an opinion as to the medical treatment proposed.
p.000029: (5) Where the nominated medical practitioner certifies that, in his opinion, having regard to all the
p.000029: circumstances and having consulted the guardian, welfare attorney or person authorised under the intervention
p.000029: order as the case may be and, if it is reasonable and practicable to do so, a person nominated by such guardian,
p.000029: welfare attorney or person authorised under the intervention order as the case may be, the proposed medical
p.000029: treatment should be given, the medical practitioner primarily responsible for the medical treatment of the adult may
p.000029: give the treatment or may authorise any other person to give the treatment notwithstanding the disagreement with the
p.000029: guardian, welfare attorney, or person authorised under the intervention order, as the case may be.
p.000029: (6) Where the nominated medical practitioner certifies that, in his opinion, having regard to all the
p.000029: circumstances and having consulted the guardian, welfare attorney or person authorised under the intervention
p.000029: order as the case may be and, if it is reasonable and practicable to do so, a person nominated by such guardian,
p.000029: welfare attorney or person authorised under the intervention order as the case may be, the proposed medical
p.000029: treatment should or, as the case may be, should not be given, the medical practitioner primarily responsible for the
p.000029: medical treatment of the adult, or any person having an interest in the personal welfare of the adult,
p.000029: may apply to the Court of Session for a determination as to whether the proposed treatment should be given or
p.000029: not.
p.000029: (7) Subject to subsection (8), where an appeal has been made to the Court of Session under subsection (3) or an
p.000029: application has been made under subsection (6), and has not been determined, medical treatment authorised by section
p.000029: 47(2) shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life
p.000029: of the adult or the prevention of serious deterioration in his medical condition.
p.000029: (8) Nothing in subsection (7) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the giving of such medical treatment.
p.000029: (9) The Mental Welfare Commission shall establish and maintain a list of medical practitioners
p.000029: from whom they shall nominate the medical practitioner who is to give the opinion under subsection (4).
p.000029: (10) In this section any reference to—
p.000029:
p.000029: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000031: 31
p.000031: Part 5—Medical treatment and research
p.000031:
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 51 Authority for research
p.000031: (1) No surgical, medical, nursing, dental or psychological research shall be carried out on any adult who is
p.000031: incapable in relation to a decision about participation in the research unless—
p.000031: (a) research of a similar nature cannot be carried out on an adult who is capable in relation to such a decision; and
p.000031: (b) the circumstances mentioned in subsection (2) are satisfied.
p.000031: (2) The circumstances referred to in subsection (1) are that—
p.000031: (a) the purpose of the research is to obtain knowledge of—
...
p.000035: (c) a guardianship order is necessary for the protection of the property, financial affairs or personal
p.000035: welfare of the adult,
p.000035: they shall apply under this section for an order.
p.000035: (3) There shall be lodged in court along with an application under this section—
p.000035: (a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days
p.000035: before the lodging of the application by at least two medical practitioners one of whom, in a case where the
p.000035: incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of
p.000035: section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;
p.000035:
p.000035: 36 Adults with Incapacity (Scotland) Act 2000
p.000035: (asp 4) Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (b) where the application relates to the personal welfare of the adult, a report, in prescribed form,
p.000035: from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate,
p.000035: from the chief social work officer), containing his opinion as to—
p.000035: (i) the general appropriateness of the order sought, based on an interview and assessment of the adult carried
p.000035: out not more than 30 days before the lodging of the application; and
p.000035: (ii) the suitability of the individual nominated in the application to be appointed guardian;
p.000035: and
p.000035: (c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
p.000035: the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as
p.000035: the case may be, the mental health officer, within 21 days of the date of the notice.
p.000035: (5) The sheriff may, on an application being made to him, at any time before the disposal of the application made
p.000035: under this section, make an order for the appointment of an interim guardian.
...
p.000043: that intimation or notification of any application or other proceedings should not be given to the adult, the chief
p.000043: social work officer shall not notify the adult under subsection (9).
p.000043: (11) The Scottish Ministers may by regulations define the scope of the powers which may be conferred on a guardian
p.000043: under subsection (1) and the conditions under which they shall be exercised.
p.000043: (12) Schedule 2 (which makes provision as to the guardian’s management of the estate of an adult) has effect.
p.000043:
p.000043: 65 Records: guardians
p.000043: A guardian shall keep records of the exercise of his powers.
p.000043:
p.000043: 66 Gifts
p.000043: (1) A guardian having powers relating to the property or financial affairs of an adult may make a gift out of the
p.000043: adult’s estate only if authorised to do so by the Public Guardian.
p.000043: (2) Authorisation by the Public Guardian under subsection (1) may be given generally, or in respect of a particular
p.000043: gift.
p.000043: (3) On receipt of an application in the prescribed form for an authorisation to make a gift, the Public Guardian
p.000043: shall, subject to subsection (4), intimate the application to the adult, his nearest relative, his primary carer
p.000043: and any other person who the Public Guardian considers has an interest in the application and advise
p.000043: them of the prescribed period within which they may object to the granting of the application; and he shall not
p.000043: grant the application without affording to any objector an opportunity of being heard.
p.000043: (4) Where the Public Guardian is of the opinion that the value of the gift is such that intimation
p.000043: is not necessary, he may dispense with intimation.
p.000043: (5) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application.
p.000043:
p.000043: 44 Adults with Incapacity (Scotland) Act 2000
p.000043: (asp 4) Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (6) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000043: guardian and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000043: refuse the application without affording to the guardian, if he objects, an opportunity of being heard.
p.000043: (7) The Public Guardian may at his own instance or at the instance of the guardian or of any person who objects
p.000043: to the granting of the application remit the application for determination by the sheriff, whose
p.000043: decision shall be final.
p.000043: (8) A decision of the Public Guardian—
p.000043: (a) to grant an application under subsection (5) or to refuse an application; or
p.000043: (b) to refuse to remit an application to the sheriff under subsection (7), may be appealed to the sheriff, whose
p.000043: decision shall be final.
p.000043:
p.000043: 67 Effect of appointment and transactions of guardian
p.000043: (1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the
p.000043: scope of the authority conferred on the guardian except in a case where he has been authorised by the guardian
...
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
p.000077:
p.000077: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000079: 79
p.000079: Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) in subsection (2)(c) for first “person” there shall be substituted “person’s personal welfare”;
p.000079: (b) in subsection (4) after “58(1),” there shall be inserted “58(1A),”;
p.000079: (c) at the end there shall be added—
p.000079: “(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this
p.000079: section.”.
p.000079: (2) In section 58 of that Act—
p.000079: (a) for subsection (1) there shall be substituted—
p.000079: “(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an
p.000079: offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court—
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
p.000079: character and antecedents of the offender and to the other available methods of dealing with him, that the
p.000079: most suitable method of disposing of the case is by means of an order under this subsection,
p.000079: the court may, subject to subsection (2) below, by order authorise his admission to and detention
p.000079: in such hospital as may be specified in the order.
p.000079: (1A) Where a person is convicted as mentioned in subsection (1) above and the court is satisfied—
p.000079: (a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements
p.000079: imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in
p.000079: section 58(1)(a) of that Act apply in relation to the offender;
p.000079: (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his
p.000079: personal welfare to be safeguarded or promoted,
p.000079: the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the
p.000079: guardianship of such local authority or of such other person approved by a local authority as may be specified in the
p.000079: order.”;
p.000079: (b) in subsections (2), (3) and (10) for “subsection (1)” there shall be substituted “subsection (1) or
p.000079: (1A)”;
p.000079: (c) in subsections (5) and (7) after “subsection (1)” there shall be inserted “or paragraph (a) of
p.000079: subsection (1A),”;
p.000079: (d) for subsection (6) there shall be substituted—
p.000079: “(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act
p.000079: referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
p.000079:
p.000079: 80 Adults with Incapacity (Scotland) Act 2000
p.000079: (asp 4) Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) on the report of a mental health officer (complying with any requirements imposed by
p.000079: section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the
p.000079: general appropriateness of the order sought, based on an interview and assessment of the person
p.000079: carried out not more than 30 days before it makes the order, that it is necessary in the interests of
p.000079: the personal welfare of the person that he should be placed under guardianship;
p.000079: (b) that any person nominated to be appointed a guardian is suitable to be so appointed;
p.000079: (c) that the authority or person is willing to receive that person into guardianship; and
p.000079: (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland)
p.000079: Act 2000 (asp 4), in force relating to the person.”;
p.000079: (e) at the end there shall be added—
p.000079: “(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this
p.000079: section.”.
p.000079: (3) After section 60 of that Act there shall be inserted—
p.000079: “60A Intervention orders
p.000079: The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section
p.000079: 57(2)(c) or 58(1A) of this Act, make an intervention order where it considers that it would be appropriate to do so.”.
p.000079: (4) In section 61 of that Act—
p.000079: (a) in subsection (1), for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”;
p.000079: (b) in subsection (2), after “section 58(1)(a)” there shall be inserted “or 58(1A)(a)”; and
p.000079: (c) in subsection (3) for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”.
p.000079:
...
General/Other / Incapacitated
Searching for indicator incapacity:
(return to top)
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: CONTENTS
p.000001:
p.000001: Section
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
p.000001:
p.000001: Judicial proceedings
p.000001: 2 Applications and other proceedings and appeals
p.000001: 3 Powers of sheriff
p.000001: 4 Power of Court of Session or sheriff with regard to nearest relative
p.000001: 5 Safeguarding of interests in Court of Session appeals or proceedings
p.000001:
p.000001: The Public Guardian
p.000001: 6 The Public Guardian and his functions
p.000001: 7 The Public Guardian: further provision
p.000001:
p.000001: Expenses in court proceedings
p.000001: 8 Expenses in court proceedings
p.000001:
p.000001: The Mental Welfare Commission
p.000001: 9 Functions of the Mental Welfare Commission
p.000001:
p.000001: Local authorities
p.000001: 10 Functions of local authorities
p.000001:
p.000001: Intimation
p.000001: 11 Intimation not required in certain circumstances
p.000001:
p.000001: Investigations
p.000001: 12 Investigations
p.000001:
p.000001: ii Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001: Codes of practice
p.000001: 13 Codes of practice
p.000001:
p.000001: Appeal against decision as to incapacity
p.000001: 14 Appeal against decision as to incapacity
p.000001:
p.000001: PART 2
p.000001: CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY
p.000001: 15 Creation of continuing power of attorney
p.000001: 16 Creation and exercise of welfare power of attorney
p.000001: 17 Attorney not obliged to act in certain circumstances
p.000001: 18 Power of attorney not granted in accordance with this Act
p.000001: 19 Registration of continuing or welfare power of attorney
p.000001: 20 Powers of sheriff
p.000001: 21 Records: attorneys
p.000001: 22 Notification to Public Guardian
p.000001: 23 Resignation of continuing or welfare attorney
p.000001: 24 Termination of continuing or welfare power of attorney
p.000001:
p.000001: PART 3
p.000001: ACCOUNTS AND FUNDS
p.000001: 25 Authority to intromit with funds
p.000001: 26 Application for authority to intromit
p.000001: 27 Notification of change of address
p.000001: 28 Purposes of intromissions with funds
p.000001: 29 Withdrawal and use of funds
p.000001: 30 Records and inquiries
p.000001: 31 Duration and termination of registration
p.000001: 32 Joint accounts
p.000001: 33 Transfer of funds
p.000001: 34 Disapplication of Part 3
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: 35 Application of Part 4
p.000001: PART 4
p.000001: MANAGEMENT OF RESIDENTS’ FINANCES
p.000001: 36 Registration for purposes of managing residents’ finances
p.000001: 37 Residents whose affairs may be managed
p.000001: 38 Financial procedures and controls in registered establishments
p.000001: 39 Matters which may be managed
p.000001: 40 Supervisory bodies
p.000001: 41 Duties and functions of managers of authorised establishment
p.000001: 42 Authorisation of named manager to withdraw from resident’s account
p.000001: 43 Statement of resident’s affairs
p.000001: 44 Resident ceasing to be resident of authorised establishment
p.000001: 45 Appeal, revocation etc.
p.000001: 46 Disapplication of Part 4
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: iii
p.000001:
p.000001: PART 5
p.000001: MEDICAL TREATMENT AND RESEARCH
p.000001: 47 Authority of persons responsible for medical treatment
p.000001: 48 Exceptions to authority to treat
p.000001: 49 Medical treatment where there is an application for intervention or guardianship order
p.000001: 50 Medical treatment where guardian etc. has been appointed
p.000001: 51 Authority for research
p.000001: 52 Appeal against decision as to medical treatment
p.000001:
p.000001: PART 6
p.000001: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000001: Intervention orders
p.000001: 53 Intervention orders
p.000001: 54 Records: intervention orders
p.000001: 55 Notification of change of address
p.000001: 56 Registration of intervention order relating to heritable property
p.000001:
p.000001: Guardianship orders
p.000001: 57 Application for guardianship order
p.000001: 58 Disposal of application
p.000001: 59 Who may be appointed as guardian
p.000001: 60 Renewal of guardianship order by sheriff
p.000001: 61 Registration of guardianship order relating to heritable property
p.000001:
p.000001: Joint and substitute guardians
p.000001: 62 Joint guardians
p.000001: 63 Substitute guardian
p.000001:
p.000001: Functions etc. of guardian
p.000001: 64 Functions and duties of guardian
p.000001: 65 Records: guardians
p.000001: 66 Gifts
p.000001: 67 Effect of appointment and transactions of guardian
p.000001: 68 Reimbursement and remuneration of guardian
p.000001: 69 Forfeiture of guardian’s remuneration
p.000001: 70 Non-compliance with decisions of guardian with welfare powers
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000
p.000001: 2000 asp 4
p.000001:
p.000001: The Bill for this Act of the Scottish Parliament was passed by the Parliament on 29th March 2000 and
p.000001: received Royal Assent on 9th May 2000
p.000001:
p.000001: An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of
p.000001: adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.
p.000001:
p.000001:
p.000001:
p.000001: PART 1
p.000001: GENERAL
p.000001: General
p.000001: 1 General principles and fundamental definitions
p.000001: (1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in
p.000001: the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any
p.000001: proceedings under this Act for or in connection with an adult.
p.000001: (2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or
p.000001: effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot
p.000001: reasonably be achieved without the intervention.
p.000001: (3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention
p.000001: shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of
p.000001: the intervention.
p.000001: (4) In determining if an intervention is to be made and, if so, what intervention is to be made,
p.000001: account shall be taken of—
p.000001: (a) the present and past wishes and feelings of the adult so far as they can be ascertained by any
p.000001: means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise)
p.000001: appropriate to the adult;
p.000001: (b) the views of the nearest relative and the primary carer of the adult, in so far as it is reasonable and
p.000001: practicable to do so;
p.000001: (c) the views of—
p.000001:
p.000001: 2 Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4) Part 1—General
p.000001:
p.000001: (i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed
p.000001: intervention; and
p.000001: (ii) any person whom the sheriff has directed to be consulted, in so far as it is reasonable and practicable to do
p.000001: so; and
p.000001: (d) the views of any other person appearing to the person responsible for authorising or effecting the intervention
p.000001: to have an interest in the welfare of the adult or in the proposed intervention, where these views have been
p.000001: made known to the person responsible, in so far as it is reasonable and practicable to do so.
p.000001: (5) Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising
p.000001: functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is
p.000001: reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his
p.000001: property, financial affairs or personal welfare, as the case may be, and to develop new such skills.
p.000001: (6) For the purposes of this Act, and unless the context otherwise requires— “adult” means a person who has
p.000001: attained the age of 16 years; “incapable” means incapable of—
p.000001: (a) acting; or
p.000001: (b) making decisions; or
p.000001: (c) communicating decisions; or
p.000001: (d) understanding decisions; or
p.000001: (e) retaining the memory of decisions,
p.000001: as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate
p.000001: because of physical disability; but a person shall not fall within this definition by reason only of a lack or
p.000001: deficiency in a faculty of communication if that lack or deficiency can be made good by human or
p.000001: mechanical aid (whether of an interpretative nature or otherwise); and
p.000001: “incapacity” shall be construed accordingly.
p.000001: (7) In subsection (4)(c)(i) any reference to—
p.000001: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000001: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000001: guardianship is recognised by the law of Scotland;
p.000001: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000001: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000001: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000001: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000001: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000001: having effect during the granter’s incapacity.
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000003: 3
p.000003: Part 1—General
p.000003:
p.000003: Judicial proceedings
p.000003: 2 Applications and other proceedings and appeals
p.000003: (1) This section shall apply for the purposes of any application which may be made to and any other proceedings
p.000003: before the sheriff under this Act.
p.000003: (2) An application to the sheriff under this Act shall be made by summary application.
p.000003: (3) Unless otherwise expressly provided for, any decision of the sheriff at first instance in any application to,
p.000003: or in any other proceedings before, him under this Act may be appealed to the sheriff principal, and
p.000003: the decision upon such appeal of the sheriff principal may be appealed, with the leave of the sheriff
p.000003: principal, to the Court of Session.
p.000003: (4) Rules made under section 32 of the Sheriff Courts (Scotland) Act 1971 (c.58) may make provision as to the
p.000003: evidence which the sheriff shall take into account when deciding whether to give a direction under section
p.000003: 11(1).
p.000003:
p.000003: 3 Powers of sheriff
p.000003: (1) In an application or any other proceedings under this Act, the sheriff may make such consequential or
p.000003: ancillary order, provision or direction as he considers appropriate.
p.000003: (2) Without prejudice to the generality of subsection (1) or to any other powers conferred by this Act, the sheriff
p.000003: may—
p.000003: (a) make any order granted by him subject to such conditions and restrictions as appear to him to be
p.000003: appropriate;
p.000003: (b) order that any reports relating to the person who is the subject of the application or proceedings be lodged with
p.000003: the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;
p.000003: (c) make such further inquiry or call for such further information as appears to him to be appropriate;
p.000003: (d) make such interim order as appears to him to be appropriate pending the disposal of the application or
p.000003: proceedings.
p.000003: (3) On an application by any person (including the adult himself) claiming an interest in the property, financial
p.000003: affairs or personal welfare of an adult, the sheriff may give such directions to any person exercising—
p.000003: (a) functions conferred by this Act; or
p.000003: (b) functions of a like nature conferred by the law of any country,
p.000003: as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him
p.000003: to be appropriate.
p.000003: (4) In an application or any other proceedings under this Act, the sheriff—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the application or proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the person
p.000003: who is the subject of the application or proceedings may, if he thinks fit, appoint a person to act for the purpose
p.000003: specified in paragraph (a).
p.000003:
p.000003: 4 Adults with Incapacity (Scotland) Act 2000
p.000003: (asp 4) Part 1—General
p.000003:
p.000003: (5) Safeguarding the interests of a person shall, for the purposes of subsection (4), include conveying his views
p.000003: so far as they are ascertainable to the sheriff; but if the sheriff considers that it is inappropriate
p.000003: that a person appointed to safeguard the interests of another under this section should also convey that
p.000003: other’s views to the sheriff, the sheriff may appoint another person for that latter purpose only.
p.000003: (6) The sheriff may, on an application by—
p.000003: (a) the person authorised under the order;
p.000003: (b) the adult; or
p.000003: (c) any person entitled to apply for the order,
p.000003: make an order varying the terms of an order granted under subsection (2)(a).
p.000003:
p.000003: 4 Power of Court of Session or sheriff with regard to nearest relative
p.000003: (1) On an application by an adult, the court may, having regard to section 1 and being satisfied
p.000003: that to do so will benefit the adult, make an order that—
p.000003: (a) certain information shall not be disclosed, or intimation of certain applications shall not be given,
p.000003: to the nearest relative of the adult;
p.000003: (b) the functions of the nearest relative of the adult shall, during the continuance in force of the order, be
p.000003: exercised by a person, specified in the application, who is not the nearest relative of the adult but who—
p.000003: (i) is a person who would otherwise be entitled to be the nearest relative in terms of this Act;
p.000003: (ii) in the opinion of the court is a proper person to act as the nearest relative; and
p.000003: (iii) is willing to so act; or
p.000003: (c) no person shall, during the continuance in force of the order, exercise the functions of the nearest
p.000003: relative.
p.000003: (2) An order made under subsection (1) shall apply only to the exercise of the functions under this Act
p.000003: of the nearest relative.
p.000003: (3) The court may, on an application by an adult, make an order varying the terms of an order granted under
p.000003: subsection (1).
p.000003: (4) No application shall be made under this section by an adult who is not incapable within the meaning of this Act
p.000003: at the time of making the application.
p.000003:
p.000003: 5 Safeguarding of interests in Court of Session appeals or proceedings
p.000003: (1) In determining any appeal or in any other proceedings under this Act the Court of Session—
p.000003: (a) shall consider whether it is necessary to appoint a person for the purpose of safeguarding the
p.000003: interests of the person who is the subject of the appeal or other proceedings; and
p.000003: (b) without prejudice to any existing power to appoint a person to represent the interests of the second
p.000003: mentioned person, may if it thinks fit appoint a person to act for the purpose specified in paragraph (a).
p.000003:
p.000003: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000005: 5
p.000005: Part 1—General
p.000005:
p.000005: (2) Safeguarding the interests of a person shall, for the purposes of subsection (1), include conveying his views
p.000005: so far as they are ascertainable to the court; but if the court considers that it is inappropriate
p.000005: that a person appointed to safeguard the interests of another under this section should also convey that
p.000005: other’s views to the court, the court may appoint another person for that latter purpose only.
p.000005:
p.000005: The Public Guardian
p.000005: 6 The Public Guardian and his functions
p.000005: (1) The Accountant of Court shall be the Public Guardian.
p.000005: (2) The Public Guardian shall have the following general functions under this Act—
p.000005: (a) to supervise any guardian or any person who is authorised under an intervention order in the exercise of his
p.000005: functions relating to the property or financial affairs of the adult;
p.000005: (b) to establish, maintain and make available during normal office hours for inspection by
p.000005: members of the public on payment of the prescribed fee, separate registers of—
p.000005: (i) all documents relating to continuing powers of attorney governed by the law of Scotland;
p.000005: (ii) all documents relating to welfare powers of attorney governed by the law of Scotland;
p.000005: (iii) all authorisations to intromit with funds under Part 3;
p.000005: (iv) all documents relating to guardianship orders under Part 6;
p.000005: (v) all documents relating to intervention orders under Part 6,
p.000005: in which he shall enter any matter which he is required to enter under this Act and any other matter of which he
p.000005: becomes aware relating to the existence or scope of the power, authorisation or order as the case may be;
p.000005: (c) to receive and investigate any complaints regarding the exercise of functions relating to the property
p.000005: or financial affairs of an adult made—
p.000005: (i) in relation to continuing attorneys;
p.000005: (ii) concerning intromissions with funds under Part 3;
p.000005: (iii) in relation to guardians or persons authorised under intervention orders;
p.000005: (d) to investigate any circumstances made known to him in which the property or financial affairs of an
p.000005: adult seem to him to be at risk;
p.000005: (e) to provide, when requested to do so, a guardian, a continuing attorney, a withdrawer or a person
p.000005: authorised under an intervention order with information and advice about the performance of functions
p.000005: relating to property or financial affairs under this Act;
p.000005: (f) to consult the Mental Welfare Commission and any local authority on cases or matters relating to the
p.000005: exercise of functions under this Act in which there is, or appears to be, a common interest.
p.000005: (3) In subsection (2)(c) any reference to—
p.000005:
p.000005: 6 Adults with Incapacity (Scotland) Act 2000
p.000005: (asp 4) Part 1—General
p.000005:
p.000005: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000005: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000005: guardianship is recognised by the law of Scotland;
p.000005: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000005: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000005: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000005:
p.000005: 7 The Public Guardian: further provision
p.000005: (1) The Scottish Ministers may prescribe—
p.000005: (a) the form and content of the registers to be established and maintained under section 6(2)(b) and the
p.000005: manner and medium in which they are to be established and maintained;
p.000005: (b) the form and content of any certificate which the Public Guardian is empowered to issue under this Act;
p.000005: (c) the forms and procedure for the purposes of any application required or permitted to be made under this Act to
p.000005: the Public Guardian in relation to any matter;
p.000005: (d) the evidence which the Public Guardian shall take into account when deciding under section 11(2)
p.000005: whether to dispense with intimation or notification to the adult.
p.000005: (2) The Public Guardian may charge the prescribed fee for anything done by him in connection with any
p.000005: of his functions under this Act and he shall not be obliged to act until such fee is paid.
p.000005: (3) Any certificate which the Public Guardian issues under this Act shall, for the purposes of any proceedings, be
p.000005: conclusive evidence of the matters contained in it.
p.000005:
p.000005: Expenses in court proceedings
p.000005: 8 Expenses in court proceedings
p.000005: (1) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of protecting the interests of an adult, the court may make an award of expenses against the adult or against
p.000005: any person whose actings have resulted in the proceedings.
p.000005: (2) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of representing the public interest, the court may make an award of expenses against any person whose
p.000005: actings have resulted in the proceedings or on whose part there has been unreasonable conduct in relation
p.000005: to the proceedings.
p.000005:
p.000005: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000007: 7
p.000007: Part 1—General
p.000007:
p.000007: The Mental Welfare Commission
p.000007: 9 Functions of the Mental Welfare Commission
p.000007: (1) Without prejudice to their functions under the 1984 Act, the Mental Welfare Commission
p.000007: shall have the following general functions under this Act in relation to any adult to whom this Act applies by
p.000007: reason of, or by reasons which include, mental disorder—
p.000007: (a) to exercise protective functions in respect of the adult if the adult is the subject of an intervention or
p.000007: guardianship order, in so far as the order relates to the personal welfare of the adult;
p.000007: (b) to visit the adult as often as they think appropriate and bring to the attention of the Health Board for the area
p.000007: in which the adult resides, or the local authority, or any other body any matter relating to the personal
p.000007: welfare of the adult which they consider ought to be brought to their attention;
p.000007: (c) to consult the Public Guardian and any local authority on cases or matters relating to the exercise of functions
p.000007: under this Act in which there is, or appears to be, a common interest;
p.000007: (d) where they are not satisfied with any investigation made by a local authority into a complaint made under section
...
p.000007: (ii) in relation to guardians or persons authorised under intervention orders;
p.000007: (e) to investigate any circumstances made known to them in which the personal welfare of the adult seems
p.000007: to them to be at risk;
p.000007: (f) to investigate any circumstances made known to them in which the property of the adult may, by reason of the
p.000007: mental disorder of the adult, be exposed to a risk of loss or damage;
p.000007: (g) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do
p.000007: so, with information and advice in connection with the performance of his functions in relation to personal welfare
p.000007: under this Act.
p.000007: (2) A guardian or welfare attorney of such an adult or a person authorised under an intervention
p.000007: order in relation to such an adult or the local authority shall afford the Mental Welfare Commission
p.000007: all facilities necessary to enable them to carry out their functions in respect of the adult.
p.000007: (3) In subsection (1)(d) any reference to—
p.000007: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000007: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000007: guardianship is recognised by the law of Scotland;
p.000007: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000007: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000007: having effect during the granter’s incapacity.
p.000007:
p.000007: 8 Adults with Incapacity (Scotland) Act 2000
p.000007: (asp 4) Part 1—General
p.000007:
p.000007: Local authorities
p.000007: 10 Functions of local authorities
p.000007: (1) A local authority shall have the following general functions under this Act—
p.000007: (a) to supervise a guardian appointed with functions relating to the personal welfare of an adult in the exercise of
p.000007: those functions;
p.000007: (b) to consult the Public Guardian and the Mental Welfare Commission on cases or matters relating to the exercise of
p.000007: functions under this Act in which there is, or appears to be, a common interest;
p.000007: (c) to receive and investigate any complaints relating to the exercise of functions relating to the
p.000007: personal welfare of an adult made—
p.000007: (i) in relation to welfare attorneys;
p.000007: (ii) in relation to guardians or persons authorised under intervention orders;
p.000007: (d) to investigate any circumstances made known to them in which the personal welfare of an adult seems to
p.000007: them to be at risk;
p.000007: (e) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do
p.000007: so, with information and advice in connection with the performance of his functions in relation to personal welfare
p.000007: under this Act.
p.000007: (2) For the purposes of subsection (1)(d), “local authority” includes a local authority for an area in which the
p.000007: adult is present.
p.000007: (3) The Scottish Ministers may make provision by regulations as regards the supervision by local authorities of the
p.000007: performance of their functions—
p.000007: (a) by guardians, in relation to the personal welfare of adults under this Act;
p.000007: (b) where the supervision has been ordered by the sheriff—
p.000007: (i) by persons authorised under intervention orders;
p.000007: (ii) by welfare attorneys.
p.000007: (4) In subsection (1)(c) any reference to—
p.000007: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000007: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000007: guardianship is recognised by the law of Scotland;
p.000007: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000007: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000007: having effect during the granter’s incapacity.
p.000007:
p.000007: Intimation
p.000007: 11 Intimation not required in certain circumstances
p.000007: (1) Where, apart from this subsection, intimation of any application or other proceedings under this Act,
p.000007: or notification of any interlocutor relating to such application or other proceedings, would be given to an adult and
p.000007: the court considers that the intimation or notification would be likely to pose a serious risk to the health of the
p.000007: adult the court may direct that such intimation or notification shall not be given.
p.000007:
p.000007: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000009: 9
p.000009: Part 1—General
p.000009: (2) Where, apart from this subsection and subsection (1), any intimation or notification to him under this Act
p.000009: would be given by the Public Guardian to an adult and the Public Guardian considers that the intimation or notification
p.000009: would be likely to pose a serious risk to the health of the adult the Public Guardian shall not give the
p.000009: intimation or notification.
p.000009: Investigations
p.000009: 12 Investigations
p.000009: (1) In consequence of any investigation carried out under—
p.000009: (a) section 6(2)(c) or (d) by the Public Guardian;
p.000009: (b) section 9(1)(d) or (e) by the Mental Welfare Commission; or
p.000009: (c) section 10(1)(c) or (d) by a local authority,
p.000009: the Public Guardian, Mental Welfare Commission or local authority, as the case may be, may take such steps, including
p.000009: the making of an application to the sheriff, as seem to him or them to be necessary to safeguard the property,
p.000009: financial affairs or personal welfare, as the case may be, of the adult.
p.000009: (2) For the purposes of any investigation mentioned in subsection (1), the Public Guardian, Mental Welfare
p.000009: Commission and local authority shall provide each other with such information and assistance as may be
p.000009: necessary to facilitate the investigation.
p.000009:
p.000009: Codes of practice
p.000009: 13 Codes of practice
p.000009: (1) The Scottish Ministers shall prepare, or cause to be prepared for their approval, and from time
p.000009: to time revise, or cause to be revised for their approval, codes of practice containing guidance as to the
p.000009: exercise by—
p.000009: (a) local authorities and their chief social work officers and mental health officers;
p.000009: (b) continuing and welfare attorneys;
p.000009: (c) persons authorised under intervention orders;
p.000009: (d) guardians;
p.000009: (e) withdrawers;
p.000009: (f) managers of authorised establishments;
p.000009: (g) supervisory bodies;
p.000009: (h) persons authorised to carry out medical treatment or research under Part 5,
p.000009: of their functions under this Act and as to such other matters arising out of or connected with this Act as the
p.000009: Scottish Ministers consider appropriate.
p.000009: (2) Before preparing or approving any code of practice under this Act or making or approving any
p.000009: alteration in it the Scottish Ministers shall consult such bodies as appear to them to be concerned.
p.000009: (3) The Scottish Ministers shall lay copies of any such code and of any alteration in it before the
p.000009: Parliament.
p.000009:
p.000009: 10 Adults with Incapacity (Scotland) Act 2000
p.000009: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000009:
p.000009: (4) The Scottish Ministers shall publish every code of practice made under this Act as for the time being in force.
p.000009:
p.000009: Appeal against decision as to incapacity
p.000009: 14 Appeal against decision as to incapacity
p.000009: A decision taken for the purposes of this Act, other than by the sheriff, as to the incapacity of an
p.000009: adult may be appealed by—
p.000009: (a) the adult; or
p.000009: (b) any person claiming an interest in the adult’s property, financial affairs or personal welfare
p.000009: relating to the purpose for which the decision was taken,
p.000009: to the sheriff or, where the decision was taken by the sheriff, to the sheriff principal and thence, with the leave of
p.000009: the sheriff principal, to the Court of Session.
p.000009:
p.000009:
p.000009: PART 2
p.000009: CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY
p.000009: 15 Creation of continuing power of attorney
p.000009: (1) Where an individual grants a power of attorney relating to his property or financial affairs in
p.000009: accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of
p.000009: law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions
p.000009: about the matter to which the power of attorney relates.
p.000009: (2) In this Act a power of attorney granted under subsection (1) is referred to as a “continuing
p.000009: power of attorney” and a person on whom such power is conferred is referred to as a “continuing attorney”.
p.000009: (3) A continuing power of attorney shall be valid only if it is expressed in a written document
p.000009: which—
p.000009: (a) is subscribed by the granter;
p.000009: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a continuing
p.000009: power;
p.000009: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000009: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000009: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000009: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the continuing
p.000009: power of attorney is granted the granter understands its nature and extent;
p.000009: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000009: the granting of the power.
p.000009: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000009: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000009:
p.000009: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000011: 11
p.000011: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
p.000011: 16 Creation and exercise of welfare power of attorney
p.000011: (1) An individual may grant a power of attorney relating to his personal welfare in accordance with
p.000011: the following provisions of this section.
p.000011: (2) In this Act a power of attorney granted under this section is referred to as a “welfare power of attorney”
p.000011: and an individual on whom such power is conferred is referred to as a “welfare attorney”.
p.000011: (3) A welfare power of attorney shall be valid only if it is expressed in a written document which—
p.000011: (a) is subscribed by the granter;
p.000011: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power
p.000011: to which this section applies;
p.000011: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000011: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000011: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000011: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the welfare power
...
p.000011: (a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a
p.000011: local authority or other body established by or under an enactment); and
p.000011: (b) shall not be exercisable unless—
p.000011: (i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney
p.000011: relates; or
p.000011: (ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.
p.000011: (6) A welfare attorney may not—
p.000011: (a) place the granter in a hospital for the treatment of mental disorder against his will; or
p.000011: (b) consent on behalf of the granter to any form of treatment mentioned in section 48(1) or (2).
p.000011: (7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the
p.000011: welfare attorney.
p.000011: (8) Any reference to a welfare attorney—
p.000011: (a) in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and
p.000011: (b) in subsection (6),
p.000011:
p.000011: 12 Adults with Incapacity (Scotland) Act 2000
p.000011: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
p.000011: shall include a reference to a person granted, under a contract, grant or appointment governed by the
p.000011: law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect
p.000011: during the granter’s incapacity.
p.000011:
p.000011: 17 Attorney not obliged to act in certain circumstances
p.000011: A continuing or welfare attorney shall not be obliged to do anything which would otherwise be within the
p.000011: powers of the attorney if doing it would, in relation to its value or utility, be unduly burdensome or expensive.
p.000011:
p.000011: 18 Power of attorney not granted in accordance with this Act
p.000011: A power of attorney granted after the commencement of this Act which is not granted in accordance with section 15
p.000011: or 16 shall have no effect during any period when the granter is incapable in relation to decisions
p.000011: about the matter to which the power of attorney relates.
p.000011:
p.000011: 19 Registration of continuing or welfare power of attorney
p.000011: (1) A continuing or welfare attorney shall have no authority to act until the document conferring the
p.000011: power of attorney has been registered under this section.
p.000011: (2) For the purposes of registration, the document conferring the power of attorney shall be sent to the Public
p.000011: Guardian who, if he is satisfied that a person appointed to act is prepared to act, shall—
p.000011: (a) enter prescribed particulars of it in the register maintained by him under section 6(2)(b)(i) or (ii) as the case
p.000011: may be;
p.000011: (b) send a copy of it with a certificate of registration to the sender;
p.000011: (c) if it confers a welfare power of attorney, send a copy of it to the Mental Welfare Commission.
p.000011: (3) The document conferring a continuing or welfare power of attorney may contain a condition that
p.000011: the Public Guardian shall not register it under this section until the occurrence of a specified event and
p.000011: in that case the Public Guardian shall not register it until he is satisfied that the specified event has occurred.
p.000011: (4) A copy of a document conferring a continuing or welfare power of attorney authenticated
p.000011: by the Public Guardian shall be accepted for all purposes as sufficient evidence of the contents of the
p.000011: original and of any matter relating thereto appearing in the copy.
p.000011: (5) The Public Guardian shall—
p.000011: (a) on the registration of a document conferring a continuing or welfare power of attorney, send a copy
p.000011: of it to the granter; and
p.000011: (b) where the document conferring the continuing or welfare power of attorney so requires, send a copy of
p.000011: it to not more than two specified individuals or holders of specified offices or positions.
p.000011: (6) A decision of the Public Guardian under subsection (2) as to whether or not a person is prepared to act or
p.000011: under subsection (3) as to whether or not the specified event has occurred may be appealed to the sheriff,
p.000011: whose decision shall be final.
p.000011:
p.000011: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000013: 13
p.000013: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: 20 Powers of sheriff
p.000013: (1) An application for an order under subsection (2) may be made to the sheriff by any person
p.000013: claiming an interest in the property, financial affairs or personal welfare of the granter of a continuing or welfare
p.000013: power of attorney.
p.000013: (2) Where, on an application being made under subsection (1), the sheriff is satisfied that the granter is
p.000013: incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000013: property, financial affairs or personal welfare insofar as the power of attorney relates to them, and that it is
p.000013: necessary to safeguard or promote these interests, he may make an order—
p.000013: (a) ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian to
p.000013: such extent as may be specified in the order;
p.000013: (b) ordaining the continuing attorney to submit accounts in respect of any period specified in the order
p.000013: for audit to the Public Guardian;
p.000013: (c) ordaining that the welfare attorney shall be subject to the supervision of the local authority to such extent as
p.000013: may be specified in the order;
p.000013: (d) ordaining the welfare attorney to give a report to him as to the manner in which the welfare attorney has
p.000013: exercised his powers during any period specified in the order;
p.000013: (e) revoking—
p.000013: (i) any of the powers granted by the continuing or welfare power of attorney; or
p.000013: (ii) the appointment of an attorney.
p.000013: (3) Where the sheriff makes an order under this section the sheriff clerk shall send a copy of the interlocutor
p.000013: containing the order to the Public Guardian who shall—
p.000013: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the
p.000013: case may be;
p.000013: (b) notify—
p.000013: (i) the granter;
p.000013: (ii) the continuing or welfare attorney;
p.000013: (iii) where it is the welfare attorney who is notified, the local authority and (in a case where the incapacity of the
p.000013: granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission;
p.000013: (iv) where the sheriff makes an order under subsection (2)(c), the local authority.
p.000013: (4) A decision of the sheriff under subsection (2)(a) to (d) shall be final.
p.000013: (5) In this section any reference to—
p.000013: (a) a continuing power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s
p.000013: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000013:
p.000013: 14 Adults with Incapacity (Scotland) Act 2000
p.000013: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: (b) a welfare power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s personal
p.000013: welfare and having effect during the granter’s incapacity,
p.000013: and “continuing attorney” and “welfare attorney” shall be construed accordingly.
p.000013:
p.000013: 21 Records: attorneys
p.000013: A continuing or welfare attorney shall keep records of the exercise of his powers.
p.000013:
p.000013: 22 Notification to Public Guardian
p.000013: (1) After a document conferring a continuing or welfare power of attorney has been registered under
p.000013: section 19, the attorney shall notify the Public Guardian—
p.000013: (a) of any change in his address;
p.000013: (b) of any change in the address of the granter of the power of attorney;
p.000013: (c) of the death of the granter of the power of attorney; or
p.000013: (d) of any other event which results in the termination of the power of attorney,
p.000013: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i)
p.000013: or (ii) as the case may be and shall notify the granter (in the case of an event mentioned in paragraph (a) or
p.000013: (d)) and, where the power of attorney relates to the personal welfare of the adult, both the local authority and
p.000013: (in a case where the incapacity of the granter is by reason of, or reasons which include, mental disorder) the Mental
p.000013: Welfare Commission.
p.000013: (2) If, after a document conferring a continuing or welfare power of attorney has been registered
p.000013: under section 19, the attorney dies, his personal representatives shall, if aware of the existence of the power of
p.000013: attorney, notify the Public Guardian who shall enter prescribed particulars in the register maintained by him
p.000013: under section 6(2)(b)(i) or (ii) as the case may be, and shall notify the granter and, where the power of attorney
p.000013: relates to the personal welfare of the adult, both the local authority and (in a case where the
p.000013: incapacity of the granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission.
p.000013:
p.000013: 23 Resignation of continuing or welfare attorney
p.000013: (1) A continuing or welfare attorney who wishes to resign after the document conferring the power of attorney has
p.000013: been registered under section 19 shall give notice in writing of his intention to do so to—
p.000013: (a) the granter of the power of attorney;
p.000013: (b) the Public Guardian;
p.000013: (c) any guardian or, where there is no guardian, the granter’s primary carer;
p.000013: (d) the local authority, where they are supervising the welfare attorney.
p.000013: (2) Subject to subsection (4), the resignation shall not have effect until the expiry of a period of
p.000013: 28 days commencing with the date of receipt by the Public Guardian of the notice given under subsection (1); and
p.000013: on its becoming effective the Public Guardian shall enter prescribed particulars in the register maintained
p.000013: by him under section 6(2)(b)(i) or (ii) as the case may be.
p.000013:
p.000013: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000015: 15
p.000015: Part 3—Accounts and funds
p.000015:
p.000015: (3) Where the resignation is of a welfare attorney, the Public Guardian shall notify the local authority and (in
p.000015: a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder) the
p.000015: Mental Welfare Commission.
p.000015: (4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a
p.000015: substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if
p.000015: evidence that—
p.000015: (a) the remaining joint attorney is willing to continue to act; or
p.000015: (b) the substitute attorney is willing to act, accompanies the notice.
p.000015:
p.000015: 24 Termination of continuing or welfare power of attorney
p.000015: (1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall,
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
p.000015: fundholder and shall not be made if there is an existing authority to intromit under this Part.
p.000015:
p.000015: 26 Application for authority to intromit
p.000015: (1) An application form for authority to intromit with funds shall—
p.000015: (a) state the purposes of the proposed intromission, setting out the specific sums relating to each
p.000015: purpose;
p.000015: (b) be signed by the applicant;
p.000015: (c) be countersigned by a member of such class of persons as is prescribed, who shall declare in the form that—
p.000015: (i) he knows the applicant and has known him for at least 2 years prior to the date of the application;
p.000015: (ii) he knows the adult;
p.000015: (iii) he is not—
p.000015: (A) a relative of or person residing with the applicant or the adult; or
p.000015: (B) a director or employee of the fundholder; or
p.000015: (C) a solicitor acting on behalf of the adult or any other person mentioned in this sub-paragraph in relation to any
p.000015: matter under this Act; or
p.000015: (D) the medical practitioner who has issued the certificate under sub- paragraph (f);
p.000015: (iv) he believes the information contained in the document to be true; and
p.000015: (v) he believes the applicant to be a fit and proper person to intromit with the funds;
p.000015: (d) contain the names and addresses of the nearest relative and primary carer of the adult, if known;
p.000015: (e) identify the account with the fundholder in relation to which the authority is sought;
p.000015: (f) be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—
p.000015: (i) incapable in relation to decisions about; or
p.000015: (ii) incapable of acting to safeguard or promote his interests in, the funds;
p.000015: (g) contain an undertaking that he will open an account (the “designated account”) solely for the purposes
p.000015: of—
p.000015: (i) receiving funds transferred under section 29(1); and
p.000015: (ii) intromitting with those funds.
p.000015: (2) The applicant shall, not later than 14 days after the form has been countersigned as mentioned in
p.000015: subsection (1)(c), send the completed form to the Public Guardian.
p.000015:
p.000015: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000017: 17
p.000017: Part 3—Accounts and funds
p.000017:
p.000017: (3) On receipt of a properly completed form sent timeously to him under subsection (2), the Public Guardian shall
p.000017: intimate the application to the adult, his nearest relative, his primary carer and any person who the Public
p.000017: Guardian considers has an interest in the application and advise them of the prescribed period within which they may
p.000017: object to the granting of the application; and he shall not grant the application without affording to any objector an
p.000017: opportunity of being heard.
p.000017: (4) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application and
p.000017: where he does so he shall—
p.000017: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iii); and
p.000017: (b) issue a certificate of authority to the withdrawer.
p.000017: (5) A certificate of authority issued under subsection (4) shall instruct—
p.000017: (a) the fundholder that the account held in the name of the adult; and
p.000017: (b) the withdrawer that the designated account,
p.000017: must not be overdrawn; and if either account is overdrawn, the fundholder of that account shall have a
p.000017: right of relief against the withdrawer.
p.000017: (6) A certificate of authority issued under subsection (4) shall instruct the fundholder of the account held in
p.000017: the name of the adult that no operations shall be carried out on the account other than those carried
p.000017: out in accordance with the certificate by the person authorised under this section.
p.000017: (7) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000017: applicant and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000017: refuse the application without affording to the applicant, if he objects, an opportunity of being heard.
p.000017: (8) The Public Guardian may at his own instance or at the instance of the applicant or of any person who objects
p.000017: to the granting of the application remit the application for determination by the sheriff, whose decision
p.000017: shall be final.
p.000017: (9) A decision of the Public Guardian—
p.000017: (a) to grant an application under subsection (4) or to refuse an application; or
p.000017: (b) to refuse to remit an application to the sheriff under subsection (8) above, may be appealed to the sheriff,
p.000017: whose decision shall be final.
p.000017: (10) In this Act an individual in respect of whom a form is registered under subsection (4) is referred to as a
p.000017: “withdrawer”.
p.000017:
p.000017: 27 Notification of change of address
p.000017: After the name of a withdrawer has been registered under section 26 the withdrawer shall notify the Public
p.000017: Guardian—
p.000017: (a) of any change in his address; and
p.000017: (b) of any change in the address of the adult,
p.000017: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000017: 6(2)(b)(iii).
p.000017:
p.000017: 18 Adults with Incapacity (Scotland) Act 2000
p.000017: (asp 4) Part 3—Accounts and funds
p.000017:
p.000017: 28 Purposes of intromissions with funds
p.000017: (1) The purposes of intromissions with funds may include any or all of the following—
p.000017: (a) the payment of central and local government taxes for which the adult is responsible;
p.000017: (b) the provisions of sustenance, accommodation, fuel, clothing and related goods and services for the adult;
p.000017: (c) the provision of other services provided for the purposes of looking after or caring for the adult;
p.000017: (d) the settlement of debts owed by or incurred in respect of the adult, including any prescribed fees charged by the
p.000017: Public Guardian in connection with the application to intromit.
p.000017: (2) The Public Guardian may, in any case, authorise payment for the provision of items other than
p.000017: those mentioned in subsection (1).
p.000017: (3) Subject to subsection (4), any funds used by the withdrawer shall be applied only for the benefit of the adult.
p.000017: (4) Where the withdrawer lives with the adult, he may, to the extent authorised by the certificate,
p.000017: apply any funds withdrawn towards household expenses.
p.000017:
p.000017: 29 Withdrawal and use of funds
p.000017: (1) On presentation to it of the certificate issued under section 26(4)(b), the fundholder of the account held in
p.000017: the name of the adult specified in the form may make arrangements to transfer to the designated account such sums as
p.000017: the Public Guardian shall authorise.
p.000017: (2) The fundholder of an account held by an adult shall be liable to the adult for any funds removed from the
p.000017: account under this section at any time when it was aware that the withdrawer’s authority had been
p.000017: terminated or suspended by the Public Guardian under section 31(3), but, on meeting such liability, the fundholder of
p.000017: the account shall have a right of relief against the withdrawer.
p.000017: (3) The Public Guardian may authorise a method of payment other than a method mentioned in subsection
p.000017: (1).
p.000017: (4) A decision of the Public Guardian not to authorise—
p.000017: (a) a method of payment other than a method mentioned in subsection (1); or
p.000017: (b) a payment under subsection (3),
p.000017: may be appealed to the sheriff, whose decision shall be final.
p.000017:
p.000017: 30 Records and inquiries
p.000017: (1) The Scottish Ministers may by regulations provide that a withdrawer shall keep a record of his intromissions
p.000017: with the funds and that the Public Guardian may at any time require a withdrawer to produce such record for the Public
p.000017: Guardian’s inspection.
p.000017: (2) The Public Guardian may—
p.000017: (a) make inquiries from time to time as to the manner in which a withdrawer has exercised his functions
p.000017: under this Part; and
p.000017:
p.000017: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000019: 19
p.000019: Part 3—Accounts and funds
p.000019:
p.000019: (b) ask the withdrawer to produce any records which he has relating to his intromissions.
p.000019: (3) The Public Guardian may require a fundholder of an account in the name of an adult or of a designated account
p.000019: to make its records of the account available for inspection by the Public Guardian.
p.000019: (4) A fundholder complying with a requirement under subsection (3) may charge a reasonable fee for doing
p.000019: so and may recover that fee from the account concerned.
p.000019:
p.000019: 31 Duration and termination of registration
p.000019: (1) Subject to the following provisions of this section, the authority of a withdrawer to intromit
p.000019: with funds under section 26 shall be valid for a period of 3 years commencing with the date of issue of the certificate
p.000019: by the Public Guardian under subsection (4)(b) of that section.
p.000019: (2) The Public Guardian may reduce or extend the period of validity mentioned in subsection (1); and an
p.000019: extension may be without limit of time.
p.000019: (3) The Public Guardian may suspend or terminate the authority of a withdrawer and shall forthwith intimate such
p.000019: suspension or termination to—
p.000019: (a) the withdrawer;
p.000019: (b) the fundholder of the designated account,
p.000019: and such suspension or termination shall have the effect of suspending or, as the case may be, terminating all
p.000019: operations on that account.
p.000019: (4) The Public Guardian may on terminating the authority of the withdrawer grant the withdrawer
...
p.000019: applications under the said section 26 after the end of a valid period of authority to withdraw or, as
p.000019: the case may be, a suspension or termination of the authority.
p.000019: (6) A decision of the Public Guardian to reduce or extend a period of validity mentioned in subsection (1) or to
p.000019: suspend or terminate the authority of a withdrawer under subsection
p.000019: (3) may be appealed to the sheriff, whose decision shall be final; and the suspension or termination shall remain in
p.000019: force until the appeal is determined.
p.000019: (7) The authority of a withdrawer to withdraw funds under section 26 shall come to an end—
p.000019: (a) on the appointment of a guardian with powers relating to the funds or account in question;
p.000019: (b) on the granting of an intervention order relating to the funds or account in question; or
p.000019: (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in
p.000019: question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to
p.000019: an end of a withdrawer’s authority under this subsection.
p.000019: (8) In subsection (7) any reference to—
p.000019:
p.000019: 20 Adults with Incapacity (Scotland) Act 2000
p.000019: (asp 4) Part 3—Accounts and funds
p.000019:
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: 32 Joint accounts
p.000019: Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes
p.000019: incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other
p.000019: joint account holder may continue to operate the account unless—
p.000019: (a) the terms of the account provide otherwise; or
p.000019: (b) he is barred by an order of any court from so doing.
p.000019:
p.000019: 33 Transfer of funds
p.000019: (1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for
p.000019: authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds
p.000019: from that account to another specified account.
p.000019: (2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of
p.000019: that transfer; and the account to which funds are transferred may be specified as to kind of account.
p.000019: (3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be
p.000019: final.
p.000019:
p.000019: 34 Disapplication of Part 3
p.000019: (1) This Part shall not apply in the case of an adult in relation to whom—
p.000019: (a) there is a guardian or continuing attorney with powers relating to the funds or account in question;
p.000019: or
p.000019: (b) an intervention order has been granted relating to the funds or account in question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000021: 21
p.000021: Part 4—Management of residents’ finances
p.000021:
p.000021: PART 4
p.000021: MANAGEMENT OF RESIDENTS’ FINANCES
p.000021: 35 Application of Part 4
p.000021: (1) Subject to subsection (3), this Part applies to the management of the matters set out in section 39 relating to
p.000021: any resident of any of the following establishments—
p.000021: (a) a hospital or other premises mentioned in section 10(3)(a) of the Nursing Homes Registration (Scotland) Act 1938
p.000021: (c.73) (“the 1938 Act”);
p.000021: (b) a nursing home registered under the 1938 Act;
p.000021: (c) a hospital or similar institution which, but for section 6 of that Act, would require to be registered under the
p.000021: 1938 Act;
p.000021: (d) an establishment in respect of which there is registration under section 61B, 62 or 63 of the Social Work
p.000021: (Scotland) Act 1968 (c.49) (“the 1968 Act”);
p.000021: (e) an establishment in relation to which, but for the exception provided by section 61(1A)(a)
p.000021: of the 1968 Act, there would require to be registration under section 62 or 63 of the 1968 Act;
p.000021: (f) a private hospital registered under Part IV of the Mental Health (Scotland) Act 1984 (c.36) (“the
p.000021: 1984 Act”);
p.000021: (g) a State hospital.
p.000021: (2) In this Part establishments mentioned in paragraph (b), (ca), (cb), (d) or (f) of subsection
p.000021: (1) are referred to as “registered establishments”, all other establishments mentioned in subsection (1) are
p.000021: referred to as “unregistered establishments”, and registered and unregistered establishments together are
p.000021: referred to as “authorised establishments”.
p.000021: (3) This Part shall not apply to a registered establishment where notice in writing is given to the supervisory
p.000021: body by—
p.000021: (a) the managers of the registered establishment; or
p.000021: (b) an applicant for registration of an establishment, that it shall not apply.
p.000021: (4) The Scottish Ministers may by regulations amend the list of authorised establishments set out in subsection
p.000021: (1).
p.000021: (5) In this Part, “the managers” has the meaning set out in schedule 1; and “resident” in relation
p.000021: to an authorised establishment means an adult whose main residence for the time being is the authorised
p.000021: establishment or who is liable to be detained there under the 1984 Act.
p.000021:
p.000021: 36 Registration for purposes of managing residents’ finances
p.000021: After section 61A of the Social Work (Scotland) Act 1968 (c.49) there shall be inserted—
p.000021:
p.000021: 22 Adults with Incapacity (Scotland) Act 2000
p.000021: (asp 4) Part 4—Management of residents’ finances
p.000021:
p.000021: “61B Registration for purpose of managing residents’ finances
p.000021: (1) Any residential or other establishment in respect of which there is no requirement to
p.000021: register under section 61 of this Act may apply for registration under this Part of this Act for the purposes
p.000021: only of Part 4 (Management of Residents’ Finances) of the Adults with Incapacity (Scotland) Act 2000 (asp
p.000021: 4).
p.000021: (2) Where an application for registration to which subsection (1) applies is granted, the
p.000021: establishment shall be entered in the register kept for the purposes of section 61(2) above by the local
p.000021: authority or, as the case may be, the Scottish Ministers.
p.000021: (3) The provisions of this Part of this Act shall apply to establishments to which this section applies subject to
p.000021: the following—
p.000021: (a) section 61(2) and (3) shall not apply;
p.000021: (b) section 62(8) and (8A) shall not apply;
p.000021: (c) section 65 shall not apply;
p.000021: (d) the provisions of section 67(1) shall apply only where the person carrying on the establishment is
p.000021: registered.”.
p.000021:
p.000021: 37 Residents whose affairs may be managed
p.000021: (1) The managers of an authorised establishment shall be entitled to manage on behalf of any resident in the
p.000021: establishment in relation to whom a certificate has been issued under subsection (2) any of the matters set out in
p.000021: section 39.
p.000021: (2) Where the managers of an authorised establishment, having considered all other appropriate courses of
p.000021: action, have decided that management on behalf of the resident of the matters set out in section 39 by them is the most
p.000021: appropriate course of action, they shall cause to be examined by a medical practitioner any resident in the
p.000021: establishment who they believe may be incapable in relation to decisions as to, or of safeguarding his interest in,
p.000021: any of the resident’s affairs referred to in section 39; and if the medical practitioner finds that the
p.000021: resident is so incapable he shall issue a certificate in prescribed form to that effect.
p.000021: (3) Subject to subsection (8), the managers of the authorised establishment shall intimate their
p.000021: intention of requiring an examination under subsection (2) to the resident and to the resident’s nearest relative.
p.000021: (4) Subject to subsection (8), the managers of the authorised establishment shall—
p.000021: (a) send a copy of the certificate to the resident and to the supervisory body, who shall notify the
p.000021: resident’s nearest relative;
p.000021: (b) notify the resident and the supervisory body that they intend to manage the resident’s affairs.
p.000021: (5) Notification under subsection (4)(b) shall include a statement as to what other courses of action had been
p.000021: considered and why they were not considered appropriate.
p.000021: (6) The medical practitioner who certifies under this section shall not—
p.000021: (a) be related to the resident or to any of the managers of the authorised establishment;
p.000021: (b) have any direct or indirect financial interest in the authorised establishment.
p.000021:
p.000021: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000023: 23
p.000023: Part 4—Management of residents’ finances
p.000023:
p.000023: (7) A certificate—
p.000023: (a) shall be reviewed where it appears to the managers of the authorised establishment, the
p.000023: medical practitioner who certifies under this section or any person having an interest in any of the resident’s
p.000023: affairs mentioned in section 39 that there has been any change in the condition or circumstances of the resident
p.000023: bearing on the resident’s incapacity; and
p.000023: (b) shall expire 3 years after it was issued.
p.000023: (8) If the managers of the authorised establishment consider that intimation to the resident under subsection (3)
p.000023: or any action under subsection (4) would be likely to pose a serious risk to the health of the resident they may apply
p.000023: to the supervisory body for a direction that they need not make the intimation or take the action.
p.000023: (9) The Scottish Ministers may prescribe the evidence which the supervisory body shall take into account
p.000023: in reaching a decision under subsection (8).
p.000023:
p.000023: 38 Financial procedures and controls in registered establishments
p.000023: (1) In section 1(3) of the Nursing Homes Registration (Scotland) Act 1938 (c.73) (“the 1938 Act”), after paragraph
p.000023: (d) there shall be inserted—
p.000023: “(e) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the home which the applicant will be required to manage.”.
p.000023: (2) In section 4(1)(a) of the 1938 Act, after sub-paragraph (ii) there shall be inserted “; and
p.000023: (iii) the financial procedures and controls relating to residents’ property.”.
p.000023: (3) In section 62(3) of the Social Work (Scotland) Act 1968 (c.49), after paragraph (c) there shall be inserted—
p.000023: “(d) that the applicant does not maintain financial procedures and controls adequate to ensure the
p.000023: safeguarding of any property of a resident of the establishment which the applicant will be required to
p.000023: manage.”.
p.000023: (4) In section 13(1) of the 1984 Act, after paragraph (a) there shall be inserted—
p.000023: “(aa) that the person proposing to carry on the establishment maintains financial procedures and controls
p.000023: adequate to ensure the safeguarding of any property of a resident of the hospital which that person will be
p.000023: required to manage.”.
p.000023:
p.000023: 39 Matters which may be managed
p.000023: (1) The matters which may be managed under this Part by the managers of an authorised establishment are—
p.000023: (a) claiming, receiving, holding and spending any pension, benefit, allowance or other payment other than
p.000023: under the Social Security Contributions and Benefits Act 1992 (c.4);
p.000023: (b) claiming, receiving, holding and spending any money to which a resident is entitled;
p.000023: (c) holding any other moveable property to which the resident is entitled;
p.000023: (d) disposing of such moveable property,
p.000023:
p.000023: 24 Adults with Incapacity (Scotland) Act 2000
p.000023: (asp 4) Part 4—Management of residents’ finances
p.000023:
p.000023: and in this Part these matters, or any of them, are referred to as residents’ affairs; and cognate expressions shall be
p.000023: construed accordingly.
p.000023: (2) In managing these matters, the managers of an authorised establishment shall—
p.000023: (a) act only for the benefit of the resident; and
p.000023: (b) have regard to the sentimental value that any item might have for the resident, or would have but for the
p.000023: resident’s incapacity.
p.000023: (3) The managers of an authorised establishment shall not, without the consent of the supervisory body,
p.000023: manage any matter if that matter has a value greater than that which is prescribed for the purposes of this subsection.
p.000023: (4) The supervisory body may in relation to an individual resident permit the managers of the authorised
p.000023: establishment to manage any matter which has a value greater than that which is prescribed in relation to it under
p.000023: subsection (3).
p.000023: (5) For the purpose of this section, “manage” denotes no greater responsibility than complying with the
p.000023: duties set out in this section.
p.000023:
p.000023: 40 Supervisory bodies
p.000023: (1) A supervisory body for the purposes of this Part is—
p.000023: (a) in relation to a registered establishment (other than an establishment mentioned in paragraph (f) of section
p.000023: 35(1)), the person or body with whom the establishment is required to register;
p.000023: (b) in relation to an authorised establishment mentioned in paragraphs (a), (c), (f) or
p.000023: (g) of section 35(1), the Health Board for the area in which the authorised establishment is situated;
p.000023: (c) in relation to an authorised establishment mentioned in paragraph (e) of that section, the local
p.000023: authority of the area in which the authorised establishment is situated,
p.000023: and any reference in this Part to an authorised establishment in relation to a supervisory body is a reference to
p.000023: an authorised establishment for which the supervisory body is responsible.
p.000023: (2) A supervisory body shall from time to time make inquiry as to the manner in which the managers of an authorised
p.000023: establishment are carrying out the management of residents’ affairs and in particular the manner in which they are
p.000023: carrying out their functions under section 41.
p.000023: (3) A supervisory body shall investigate any complaint received as to the manner in which the managers of an
p.000023: authorised establishment are managing residents’ affairs.
p.000023: (4) The Scottish Ministers may by regulations amend the list of supervisory bodies set out in subsection (1).
p.000023:
p.000023: 41 Duties and functions of managers of authorised establishment
p.000023: The managers of an authorised establishment shall, in relation to residents whose affairs they are managing under
p.000023: section 39—
p.000023: (a) claim, receive and hold any pension, benefit, allowance or other payment to which the resident is entitled
p.000023: other than under the Social Security Contributions and Benefits Act 1992 (c.4);
p.000023:
p.000023: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000025: 25
p.000025: Part 4—Management of residents’ finances
p.000025:
p.000025: (b) keep the funds of residents separate from the funds of the establishment;
p.000025: (c) comply with any requirements of the supervisory body as respects keeping the funds of residents
p.000025: separate or distinguishable from each other;
p.000025: (d) ensure that where, at any time, the total amount of funds held on behalf of any resident exceeds such sum as
p.000025: may from time to time be prescribed they shall be placed so as to earn interest;
p.000025: (e) keep records of all transactions made in relation to the funds held by them in respect of each
p.000025: resident for whose benefit the funds are held and managed and, in particular, ensure that details of the balance and
p.000025: any interest due to each resident can be ascertained at any time;
p.000025: (f) produce such records when requested to do so by the resident, his nearest relative or the supervisory body;
p.000025: (g) spend money only on items or services which are of benefit to the resident on whose behalf the
p.000025: funds are held;
p.000025: (h) not spend money on items or services which are provided by the establishment to or for such resident as part of
p.000025: its normal service;
p.000025: (i) make proper provision for indemnifying residents against any loss attributable to—
p.000025: (i) any act or omission on the part of the managers of the establishment in exercising the powers
p.000025: conferred by this Part or of others for whom the managers are responsible or attributable to any
p.000025: expenditure in breach of paragraph (g);
...
p.000025: may issue a certificate of authority under this section in relation to any resident named in the application.
p.000025: (2) An application under subsection (1) shall specify one or more persons (being managers, officers or members
p.000025: of staff of the establishment) who shall exercise the authority conferred by this section.
p.000025: (3) A certificate of authority shall be signed by the officer of the supervisory body authorised by
p.000025: the body to do so and shall—
p.000025: (a) specify accounts or other funds of the resident;
p.000025: (b) name the persons specified in the application (the “authorised persons”);
p.000025: (c) specify the period of validity of the certificate of authority, being a period not exceeding the
p.000025: period of validity of the certificate issued under section 37(2).
p.000025: (4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is
p.000025: specified in the certificate of authority and the fundholder may make payments accordingly.
p.000025: (5) The supervisory body may at any time after it has issued a certificate of authority, revoke it
p.000025: and if it does so it shall notify the fundholder of the revocation.
p.000025:
p.000025: 26 Adults with Incapacity (Scotland) Act 2000
p.000025: (asp 4) Part 4—Management of residents’ finances
p.000025:
p.000025:
p.000025: 43 Statement of resident’s affairs
p.000025: (1) In this section, “resident” means a resident of an authorised establishment whose affairs are being managed in
p.000025: accordance with the provisions of this Part and “statement” means a statement of the affairs of the resident.
p.000025: (2) Where a resident ceases to be incapable of managing his affairs, the managers of the establishment
p.000025: shall prepare a statement as at the date on which he ceases to be incapable and shall give a copy to him.
p.000025: (3) Where a resident moves from an authorised establishment to another authorised establishment, the
p.000025: managers of the establishment from which he moves shall, except where he has ceased to be incapable,
p.000025: prepare a statement as at the date on which he moves and shall send a copy of the statement to the managers of
p.000025: the other establishment.
p.000025: (4) Where a resident leaves an authorised establishment, other than to move to another authorised
p.000025: establishment and except where he has ceased to be incapable, the managers of the establishment shall prepare a
p.000025: statement as at the date on which he leaves and shall give a copy of the statement to any person who appears to them to
p.000025: be the person who will manage his affairs.
p.000025:
p.000025: 44 Resident ceasing to be resident of authorised establishment
...
p.000025: are necessary for managing his affairs are being made.
p.000025: (2) At the end of the period referred to in subsection (1) during which the managers of the establishment have
p.000025: continued to manage the resident’s affairs, they shall prepare a statement and shall give a copy of it to—
p.000025: (a) the resident, if he has ceased to be incapable; or
p.000025: (b) any person who appears to them to be the person who will manage his affairs.
p.000025: (3) Where a resident ceases to be a resident of an authorised establishment and his affairs are to be managed by
p.000025: another establishment, authority or person (including himself) the managers of the establishment shall take such
p.000025: steps as are necessary to transfer his affairs to that establishment, authority or person, as the case may be.
p.000025: (4) Where a resident ceases to be a resident of an authorised establishment the managers of the establishment shall
p.000025: within 14 days of that event inform—
p.000025: (a) the supervisory body; and
p.000025: (b) where the resident has not ceased to be incapable and has moved neither—
p.000025: (i) to another authorised establishment; nor
p.000025: (ii) into the care of a local authority,
p.000025: the local authority of the area in which they expect him to reside.
p.000025:
p.000025: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000027: 27
p.000027: Part 4—Management of residents’ finances
p.000027:
p.000027: 45 Appeal, revocation etc.
p.000027: (1) Where it appears to a supervisory body that the managers of an authorised establishment are no longer operating
p.000027: as such or have failed to comply with any requirement of this Part or that, for any other reason, it is no longer
p.000027: appropriate that they should continue to manage residents’ affairs it may revoke—
p.000027: (a) in the case of a registered establishment to which section 61B of the Social Work (Scotland) Act 1968 (c.49)
p.000027: applies, the registration;
p.000027: (b) in any other case, the power to manage.
p.000027: (2) Where the managers of a registered establishment have given notice to the supervisory body under section 35(3)
p.000027: the supervisory body shall revoke the registration.
p.000027: (3) Where a registration or a power to manage has been revoked under this section, the supervisory
p.000027: body shall within a period of 14 days from such revocation take over management of the residents’
p.000027: affairs and, where they do so, comply with the requirements imposed by and under this Part upon
p.000027: the managers of an authorised establishment.
p.000027: (4) The supervisory body shall, within the period of 3 months after taking over management of residents’ affairs
p.000027: under subsection (3), cause that management to be transferred to such other establishment, authority or person
p.000027: (who may be the resident) as they consider appropriate.
p.000027: (5) Where the supervisory body is satisfied that the circumstances mentioned in subsection (1)
p.000027: no longer apply in relation to an establishment whose power to manage it has revoked, it may annul the revocation
p.000027: of the power and, where necessary, of the registration.
p.000027: (6) Any decision of a supervisory body may be appealed to the sheriff, whose decision shall be final.
p.000027:
p.000027: 46 Disapplication of Part 4
p.000027: (1) This Part shall not apply to any of the matters which may be managed under section 39 if—
p.000027: (a) there is a guardian, continuing attorney, or other person with powers relating to that matter; or
p.000027: (b) an intervention order has been granted relating to that matter,
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
p.000027: (b) has certified in accordance with subsection (5) that he is of this opinion.
p.000027: (2) Without prejudice to any authority conferred by any other enactment or rule of law, and subject to sections 49
p.000027: and 50 and to the following provisions of this section, the medical practitioner primarily responsible for the
p.000027: medical treatment of the adult shall have, during the period specified in the certificate, authority to do what
p.000027: is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or
p.000027: mental health of the adult.
p.000027: (3) The authority conferred by subsection (2) shall be exercisable also by any other person who is authorised by
p.000027: the medical practitioner primarily responsible for the medical treatment of the adult to carry out medical
p.000027: treatment and who is acting—
p.000027: (a) on his behalf under his instructions; or
...
p.000027: during which the authority conferred by subsection (2) shall subsist, being a period which—
p.000027: (a) the medical practitioner primarily responsible for the medical treatment of the adult considers
p.000027: appropriate to the condition or circumstances of the adult; but
p.000027: (b) does not exceed one year from the date of the examination on which the certificate is based.
p.000027: (6) If after issuing a certificate, the medical practitioner primarily responsible for the medical
p.000027: treatment of the adult is of the opinion that the condition or circumstances of the adult have changed he may—
p.000027: (a) revoke the certificate;
p.000027: (b) issue a new certificate specifying such period not exceeding one year from the date of revocation
p.000027: of the old certificate as he considers appropriate to the new condition or circumstances of the adult.
p.000027: (7) The authority conferred by subsection (2) shall not authorise—
p.000027: (a) the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the
p.000027: circumstances;
p.000027: (b) action which would be inconsistent with any decision by a competent court;
p.000027: (c) placing an adult in a hospital for the treatment of mental disorder against his will.
p.000027: (8) The authority conferred by subsection (2) shall not authorise medical treatment prescribed
p.000027: in regulations made under section 48.
p.000027:
p.000027: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000029: 29
p.000029: Part 5—Medical treatment and research
p.000029:
p.000029: (9) Subject to subsection (10), where any question as to the authority of any person to provide
p.000029: medical treatment in pursuance of subsection (2)—
p.000029: (a) is the subject of proceedings in any court (other than for the purposes of any application to the
p.000029: court made under regulations made under section 48); and
p.000029: (b) has not been determined,
p.000029: medical treatment authorised by subsection (2) shall not be given unless it is authorised by any other enactment or
p.000029: rule of law for the preservation of the life of the adult or the prevention of serious deterioration in his medical
p.000029: condition.
p.000029: (10) Nothing in subsection (9) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 48 Exceptions to authority to treat
p.000029: (1) The authority conferred by section 47(2) does not extend to the giving of any of the forms of
p.000029: treatment to which Part X of the 1984 Act applies to a patient to whom that Part applies (which Part authorises
p.000029: certain treatments for mental disorder for certain patients detained under that Act).
p.000029: (2) The Scottish Ministers may by regulations specify medical treatment, or a class or classes of
...
p.000029:
p.000029: 49 Medical treatment where there is an application for intervention or guardianship order
p.000029: (1) Section 47(2) shall not apply if, to the knowledge of the medical practitioner primarily responsible for the
p.000029: medical treatment of the adult, an application for an intervention order or a guardianship order with power in
p.000029: relation to any medical treatment referred to in that subsection has been made to the sheriff and has not been
p.000029: determined.
p.000029: (2) Until the application has been finally determined, medical treatment authorised by section 47(2)
p.000029: shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life of
p.000029: the adult or the prevention of serious deterioration in his medical condition.
p.000029: (3) Nothing in subsection (2) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 50 Medical treatment where guardian etc. has been appointed
p.000029: (1) This section applies where a guardian or a welfare attorney has been appointed or a person has
p.000029: been authorised under an intervention order with power in relation to any medical treatment referred to in
p.000029: section 47.
p.000029: (2) The authority conferred by section 47(2) shall not apply where—
p.000029: (a) subsection (1) applies;
p.000029:
p.000029: 30 Adults with Incapacity (Scotland) Act 2000
p.000029: (asp 4) Part 5—Medical treatment and research
p.000029:
p.000029: (b) the medical practitioner primarily responsible for the medical treatment of the adult is aware of the
p.000029: appointment or, as the case may be, authorisation; and
p.000029: (c) it would be reasonable and practicable for that medical practitioner to obtain the consent of the guardian,
p.000029: welfare attorney or person authorised under the intervention order, as the case may be, to any proposed
p.000029: medical treatment but he has failed to do so.
p.000029: (3) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is no
p.000029: disagreement as to the medical treatment of the adult, any person having an interest in the personal welfare
p.000029: of the adult may appeal the decision as to the medical treatment to the Court of Session.
p.000029: (4) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is a
p.000029: disagreement as to the medical treatment of the adult, the medical practitioner shall request the Mental Welfare
p.000029: Commission to nominate a medical practitioner (the “nominated medical practitioner”) from the list established and
...
p.000029: welfare attorney or person authorised under the intervention order as the case may be, the proposed medical
p.000029: treatment should or, as the case may be, should not be given, the medical practitioner primarily responsible for the
p.000029: medical treatment of the adult, or any person having an interest in the personal welfare of the adult,
p.000029: may apply to the Court of Session for a determination as to whether the proposed treatment should be given or
p.000029: not.
p.000029: (7) Subject to subsection (8), where an appeal has been made to the Court of Session under subsection (3) or an
p.000029: application has been made under subsection (6), and has not been determined, medical treatment authorised by section
p.000029: 47(2) shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life
p.000029: of the adult or the prevention of serious deterioration in his medical condition.
p.000029: (8) Nothing in subsection (7) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the giving of such medical treatment.
p.000029: (9) The Mental Welfare Commission shall establish and maintain a list of medical practitioners
p.000029: from whom they shall nominate the medical practitioner who is to give the opinion under subsection (4).
p.000029: (10) In this section any reference to—
p.000029:
p.000029: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000031: 31
p.000031: Part 5—Medical treatment and research
p.000031:
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 51 Authority for research
p.000031: (1) No surgical, medical, nursing, dental or psychological research shall be carried out on any adult who is
p.000031: incapable in relation to a decision about participation in the research unless—
p.000031: (a) research of a similar nature cannot be carried out on an adult who is capable in relation to such a decision; and
p.000031: (b) the circumstances mentioned in subsection (2) are satisfied.
p.000031: (2) The circumstances referred to in subsection (1) are that—
p.000031: (a) the purpose of the research is to obtain knowledge of—
p.000031: (i) the causes, diagnosis, treatment or care of the adult’s incapacity; or
p.000031: (ii) the effect of any treatment or care given during his incapacity to the adult which relates to that incapacity;
p.000031: and
p.000031: (b) the conditions mentioned in subsection (3) are fulfilled.
p.000031: (3) The conditions are—
p.000031: (a) the research is likely to produce real and direct benefit to the adult;
p.000031: (b) the adult does not indicate unwillingness to participate in the research;
p.000031: (c) the research has been approved by the Ethics Committee;
p.000031: (d) the research entails no foreseeable risk, or only a minimal foreseeable risk, to the adult;
p.000031: (e) the research imposes no discomfort, or only minimal discomfort, on the adult; and
p.000031: (f) consent has been obtained from any guardian or welfare attorney who has power to consent to the adult’s
p.000031: participation in research or, where there is no such guardian or welfare attorney, from the adult’s nearest
p.000031: relative.
p.000031: (4) Where the research is not likely to produce real and direct benefit to the adult, it may nevertheless be
p.000031: carried out if it will contribute through significant improvement in the scientific understanding of the adult’s
p.000031: incapacity to the attainment of real and direct benefit to the adult or to other persons having the same
p.000031: incapacity, provided the other circumstances or conditions mentioned in subsections (1) to (3) are fulfilled.
p.000031: (5) In granting approval under subsection (3)(c), the Ethics Committee may impose such conditions as it
p.000031: sees fit.
p.000031:
p.000031: 32 Adults with Incapacity (Scotland) Act 2000
p.000031: (asp 4) Part 6—Intervention orders and guardianship orders
p.000031:
p.000031: (6) The Ethics Committee shall be constituted by regulations made by the Scottish Ministers and such regulations
p.000031: may make provision as to the composition of, appointments to and procedures of the Ethics Committee and may make such
p.000031: provision for the payment of such remuneration, expenses and superannuation as the Scottish Ministers
p.000031: may determine.
p.000031: (7) Regulations made by the Scottish Ministers under subsection (6) may prescribe particular
p.000031: matters which the Ethics Committee shall take into account when deciding whether to approve any research
p.000031: under this Part.
p.000031: (8) In this section any reference to—
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 52 Appeal against decision as to medical treatment
p.000031: Any decision taken for the purposes of this Part, other than a decision by a medical practitioner under
p.000031: section 50, as to the medical treatment of the adult may be appealed by any person having an interest in the personal
p.000031: welfare of the adult to the sheriff and thence, with the leave of the sheriff, to the Court of Session.
p.000031:
p.000031:
p.000031: PART 6
p.000031: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000031: Intervention orders
p.000031: 53 Intervention orders
p.000031: (1) The sheriff may, on an application by any person (including the adult himself) claiming an interest in the
p.000031: property, financial affairs or personal welfare of an adult, if he is satisfied that the adult is incapable
p.000031: of taking the action, or is incapable in relation to the decision about his property, financial affairs or personal
p.000031: welfare to which the application relates, make an order (in this Act referred to as an “intervention order”).
p.000031: (2) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000031: or guardianship order which may have been previously made in relation to the adult, and to any order varying,
p.000031: or ancillary to, such an order.
p.000031: (3) Where it appears to the local authority that—
p.000031: (a) the adult is incapable as mentioned in subsection (1); and
p.000031: (b) no application has been made or is likely to be made for an order under this section in relation
p.000031: to the decision to which the application under this subsection relates; and
p.000031: (c) an intervention order is necessary for the protection of the property, financial affairs or personal
p.000031: welfare of the adult,
p.000031:
p.000031: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000033: 33
p.000033: Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: they shall apply under this section for an order.
p.000033: (4) Section 57(3) and (4) shall apply to an application under this section and, for this purpose, for
p.000033: the reference to the individual or office holder nominated for appointment as guardian there shall be substituted
p.000033: a reference to a person nominated in such application.
p.000033: (5) An intervention order may—
p.000033: (a) direct the taking of any action specified in the order;
p.000033: (b) authorise the person nominated in the application to take such action or make such decision in relation to
p.000033: the property, financial affairs or personal welfare of the adult as is specified in the order;
p.000033: (6) Where an intervention order directs the acquisition of accommodation for, or the disposal of any
p.000033: accommodation used for the time being as a dwelling house by, the adult, the consent of the Public Guardian
p.000033: as respects the consideration shall be required before the accommodation is acquired or, as the case may be, disposed
p.000033: of.
p.000033: (7) In making or varying an intervention order the sheriff may, and in the case of an intervention
p.000033: order relating to property or financial affairs shall, except where—
p.000033: (a) the person authorised under the intervention order is unable to find caution; but
p.000033: (b) the sheriff is satisfied that nevertheless he is suitable to be authorised under the order,
p.000033: require the person authorised under the order to find caution.
p.000033: (8) The sheriff may, on an application by—
p.000033: (a) the person authorised under the intervention order; or
p.000033: (b) the adult; or
p.000033: (c) any person claiming an interest in the property, financial affairs or personal welfare of the adult,
p.000033: make an order varying the terms of, or recalling, the intervention order or any other order made for the
p.000033: purposes of the intervention order.
p.000033: (9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the
p.000033: capacity to do so.
p.000033: (10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor
p.000033: containing the order to the Public Guardian who shall—
p.000033: (a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be
p.000033: prescribed; and
p.000033: (b) notify the adult, the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000033: which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors
p.000033: which include it) the Mental Welfare Commission.
p.000033: (11) A transaction for value between a person authorised under an intervention order, purporting to act as
p.000033: such, and a third party acting in good faith shall not be invalid on the ground only that—
p.000033: (a) the person acted outwith the scope of his authority;
p.000033:
p.000033: 34 Adults with Incapacity (Scotland) Act 2000
p.000033: (asp 4) Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: (b) the person failed to observe any requirement, whether substantive or procedural, imposed by or under this Act or
p.000033: by the sheriff or by the Public Guardian; or
p.000033: (c) there was any irregularity whether substantive or procedural in the authorisation of the person.
p.000033: (12) A person authorised under an intervention order may recover from the estate of the adult the amount of such
p.000033: reasonable outlays as he incurs in doing anything directed or authorised under the order.
p.000033: (13) Where a third party has acquired, in good faith and for value, title to any interest in
p.000033: heritable property from a person authorised under an intervention order that title shall not be challengeable on the
p.000033: ground only—
p.000033: (a) of any irregularity of procedure in the making of the intervention order; or
p.000033: (b) that the person authorised under the intervention order has acted outwith the scope of the authority.
p.000033: (14) Sections 64(2) and 67(3) and (4) shall apply to an intervention order as they apply to a guardianship order and,
p.000033: for this purpose, for any reference to a guardian there shall be substituted a reference to the person authorised under
p.000033: the order.
p.000033:
p.000033: 54 Records: intervention orders
p.000033: A person authorised under an intervention order shall keep records of the exercise of his powers.
p.000033:
p.000033: 55 Notification of change of address
p.000033: After particulars relating to an intervention order are entered in the register under section 53 the
p.000033: person authorised under the intervention order shall notify the Public Guardian—
p.000033: (a) of any change in his address; and
p.000033: (b) of any change in the address of the adult,
p.000033: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000033: 6(2)(b)(v) and notify the local authority and (in a case where the adult’s incapacity is by reason of,
p.000033: or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or
p.000033: factors which include it) the Mental Welfare Commission.
p.000033:
p.000033: 56 Registration of intervention order relating to heritable property
p.000033: (1) This section applies where the sheriff makes an intervention order which vests in the person
p.000033: authorised under the order any right to deal with, convey or manage any interest in heritable property which is
p.000033: recorded or is capable of being recorded in the General Register of Sasines or is registered or is capable of being
p.000033: registered in the Land Register of Scotland.
p.000033: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000033: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000033:
p.000033: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000035: 35
p.000035: Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (3) The person authorised under the order shall forthwith apply to the Keeper of the Registers of
p.000035: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or,
p.000035: as the case may be, for registering of it in the Land Register of Scotland.
p.000035: (4) An application under subsection (3) shall contain—
p.000035: (a) the name and address of the person authorised under the order;
p.000035: (b) a statement that the person authorised under the order has powers relating to each property specified in the
p.000035: order;
p.000035: (c) a copy of the interlocutor.
p.000035: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000035: (a) record the interlocutor in the Register; and
p.000035: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000035: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000035: sheet of the property to show it.
p.000035: (7) The person authorised under the order shall send the endorsed interlocutor or, as the case may
p.000035: be, the updated Land Certificate or an office copy thereof to the Public Guardian who shall enter
p.000035: prescribed particulars of it in the register maintained by him under section 6(2)(b)(v).
p.000035:
p.000035: Guardianship orders
p.000035: 57 Application for guardianship order
p.000035: (1) An application may be made under this section by any person (including the adult himself) claiming
p.000035: an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing
p.000035: an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.
p.000035: (2) Where it appears to the local authority that—
p.000035: (a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and
p.000035: (b) no application has been made or is likely to be made for an order under this section; and
p.000035: (c) a guardianship order is necessary for the protection of the property, financial affairs or personal
p.000035: welfare of the adult,
p.000035: they shall apply under this section for an order.
p.000035: (3) There shall be lodged in court along with an application under this section—
p.000035: (a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days
p.000035: before the lodging of the application by at least two medical practitioners one of whom, in a case where the
p.000035: incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of
p.000035: section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;
p.000035:
p.000035: 36 Adults with Incapacity (Scotland) Act 2000
p.000035: (asp 4) Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (b) where the application relates to the personal welfare of the adult, a report, in prescribed form,
p.000035: from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate,
p.000035: from the chief social work officer), containing his opinion as to—
p.000035: (i) the general appropriateness of the order sought, based on an interview and assessment of the adult carried
p.000035: out not more than 30 days before the lodging of the application; and
p.000035: (ii) the suitability of the individual nominated in the application to be appointed guardian;
p.000035: and
p.000035: (c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
...
p.000035: cease to have effect—
p.000035: (a) on the appointment of a guardian under section 58; or
p.000035: (b) at the end of the period of 3 months from the date of appointment, whichever is the earlier.
p.000035:
p.000035: 58 Disposal of application
p.000035: (1) Where the sheriff is satisfied in considering an application under section 57 that—
p.000035: (a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000035: property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
p.000035: (b) no other means provided by or under this Act would be sufficient to enable the adult’s interests in his
p.000035: property, financial affairs or personal welfare to be safeguarded or promoted,
p.000035: he may grant the application.
p.000035: (2) In considering an application under section 57, the sheriff shall have regard to any intervention
p.000035: order or guardianship order which may have been previously made in relation to the adult, and to any order
p.000035: varying, or ancillary to, such an order.
p.000035: (3) Where the sheriff is satisfied that an intervention order would be sufficient as mentioned in subsection (1),
p.000035: he may treat the application under this section as an application for an intervention order under section 53 and may
p.000035: make such order as appears to him to be appropriate.
p.000035:
p.000035: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000037: 37
p.000037: Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (4) Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as
p.000037: a “guardianship order”) appointing the individual or office holder nominated in the application to be the
p.000037: guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown,
p.000037: he may determine.
p.000037: (5) Where more than one individual or office holder is nominated in the application, a guardianship
p.000037: order may, without prejudice to the power under section 62(1) to appoint joint guardians, appoint two or more guardians
p.000037: to exercise different powers in relation to the adult.
p.000037: (6) In making a guardianship order relating to the property or financial affairs of the adult the sheriff shall,
p.000037: except where—
p.000037: (a) the individual is unable to find caution; but
p.000037: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian, require an individual
p.000037: appointed as guardian to find caution.
p.000037: (7) Where the sheriff makes a guardianship order the sheriff clerk shall forthwith send a copy of the
p.000037: interlocutor containing the order to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv);
p.000037: (b) when satisfied that the guardian has found caution if so required, issue a certificate of appointment
p.000037: to the guardian;
p.000037: (c) notify the adult of the appointment of the guardian; and
p.000037: (d) notify the local authority and (in a case where the incapacity of the adult is by reason of, or
p.000037: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000037: factors which include it) the Mental Welfare Commission of the terms of the interlocutor.
p.000037:
p.000037: 59 Who may be appointed as guardian
p.000037: (1) The sheriff may appoint as guardian—
p.000037: (a) any individual whom he considers to be suitable for appointment and who has consented to being
p.000037: appointed;
p.000037: (b) where the guardianship order is to relate only to the personal welfare of the adult, the chief social work
p.000037: officer of the local authority.
p.000037: (2) Where the guardianship order is to relate to the property and financial affairs and to the personal welfare
p.000037: of the adult and joint guardians are to be appointed, the chief social work officer of the local authority may
p.000037: be appointed guardian in relation only to the personal welfare of the adult.
p.000037: (3) The sheriff shall not appoint an individual as guardian to an adult unless he is satisfied that the individual
p.000037: is aware of—
p.000037: (a) the adult’s circumstances and condition and of the needs arising from such circumstances and
p.000037: condition; and
p.000037: (b) the functions of a guardian.
p.000037: (4) In determining if an individual is suitable for appointment as guardian, the sheriff shall have regard to—
p.000037: (a) the accessibility of the individual to the adult and to his primary carer;
p.000037:
p.000037: 38 Adults with Incapacity (Scotland) Act 2000
p.000037: (asp 4) Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (b) the ability of the individual to carry out the functions of guardian;
p.000037: (c) any likely conflict of interest between the adult and the individual;
p.000037: (d) any undue concentration of power which is likely to arise in the individual over the adult;
p.000037: (e) any adverse effects which the appointment of the individual would have on the interests of the adult;
p.000037: (f) such other matters as appear to him to be appropriate.
p.000037: (5) Paragraphs (c) and (d) of subsection (4) shall not be regarded as applying to an individual by
p.000037: reason only of his being a close relative of, or person residing with, the adult.
p.000037:
p.000037: 60 Renewal of guardianship order by sheriff
p.000037: (1) At any time before the end of a period in respect of which a guardianship order has been made or renewed, an
p.000037: application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such
p.000037: an application is so made, the order shall continue to have effect until the application is determined.
p.000037: (2) Where it appears to the local authority that an application for renewal of a guardianship order under
p.000037: subsection (1) is necessary but that no such application has been made or is likely to be made, they shall apply under
p.000037: subsection (1) for the renewal of such an order and, where such an application is so made, the order shall continue to
p.000037: have effect until the application is determined.
p.000037: (3) Section 57(3) shall apply for the purposes of an application made under this section as it applies for the
p.000037: purposes of an application made under that section; and for the purposes of so applying that subsection references
p.000037: to the appointment of a guardian (however expressed) shall be construed as references to the continuation of
p.000037: appointment.
p.000037: (4) Section 58 shall apply to an application under this section as it applies to an application under section 57;
p.000037: and for the purposes of so applying that section—
p.000037: (a) references to the making of a guardianship order and the appointment of a guardian (however
p.000037: expressed) shall be construed as references to, respectively, the renewal of the order and the continuation of
p.000037: appointment;
p.000037: (b) for subsection (4) there shall be substituted—
p.000037: “(4) Where the sheriff grants an application under section 60, he may continue the guardianship order for a period of
p.000037: 5 years or for such other period (including an indefinite period) as, on cause shown, he may determine.”.
p.000037: (5) Where the sheriff refuses an application under this section, the sheriff clerk shall forthwith send
p.000037: a copy of the interlocutor containing the refusal to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000037: (b) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000037: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000037: include it) the Mental Welfare Commission.
p.000037:
p.000037: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000039: 39
p.000039: Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: 61 Registration of guardianship order relating to heritable property
p.000039: (1) This section applies where the sheriff makes a guardianship order which vests in the guardian any
p.000039: right of the adult to deal with, convey or manage any interest in heritable property which is recorded or is capable of
p.000039: being recorded in the General Register of Sasines or is registered or is capable of being registered in
p.000039: the Land Register of Scotland.
p.000039: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000039: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000039: (3) The guardian shall, after finding caution if so required, forthwith apply to the Keeper of the Registers of
p.000039: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or, as the
p.000039: case may be, registering of it in the Land Register of Scotland.
p.000039: (4) An application under subsection (3) shall contain—
p.000039: (a) the name and address of the guardian;
p.000039: (b) a statement that the guardian has powers relating to each property specified in the order;
p.000039: (c) a copy of the interlocutor.
p.000039: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000039: (a) record the interlocutor in the Register; and
p.000039: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000039: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000039: sheet of the property to show the interlocutor.
p.000039: (7) The guardian shall send the endorsed interlocutor or, as the case may be, the updated Land Certificate or
p.000039: an office copy thereof to the Public Guardian who shall enter prescribed particulars of it in the register
p.000039: maintained by him under section 6(2)(b)(iv).
p.000039:
p.000039: Joint and substitute guardians
p.000039: 62 Joint guardians
p.000039: (1) An application may be made to the sheriff—
p.000039: (a) by two or more individuals seeking appointment, for their appointment as joint guardians to an adult;
p.000039: or
p.000039: (b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly
p.000039: with one or more existing guardians.
p.000039: (2) Joint guardians shall not be appointed to an adult unless—
p.000039: (a) the individuals so appointed are parents, siblings or children of the adult; or
p.000039: (b) the sheriff is satisfied that, in the circumstances, it is appropriate to appoint as joint
p.000039: guardians individuals who are not related to the adult as mentioned in paragraph (a).
p.000039:
p.000039: 40 Adults with Incapacity (Scotland) Act 2000
p.000039: (asp 4) Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: (3) Where an application is made under subsection (1)(a), sections 58 and 59 shall apply for the purposes of the
p.000039: disposal of that application as they apply for the disposal of an application under section 57.
p.000039: (4) In deciding if an individual is suitable for appointment as additional guardian under subsection
p.000039: (1)(b), the sheriff shall have regard to the matters set out in section 59(3) to (5).
p.000039: (5) Where the sheriff appoints an additional guardian under this section, the sheriff clerk shall send a
p.000039: copy of the order appointing him to the Public Guardian who shall—
p.000039: (a) enter prescribed particulars in the register maintained by him under section 6(2) (b)(iv) of this Act;
p.000039: (b) when satisfied that the additional guardian has found caution if so required, issue a certificate of
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000039: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000039: include it) the Mental Welfare Commission.
p.000039: (6) Joint guardians may, subject to subsection (7), exercise their functions individually, and each guardian shall
p.000039: be liable for any loss or injury caused to the adult arising out of—
p.000039: (a) his own acts or omissions; or
p.000039: (b) his failure to take reasonable steps to ensure that a joint guardian does not breach any duty of care or
p.000039: fiduciary duty owed to the adult,
p.000039: and where more than one such guardian is so liable they shall be liable jointly and severally.
p.000039: (7) A joint guardian shall, before exercising any functions conferred on him, consult the other joint
p.000039: guardians, unless—
p.000039: (a) consultation would be impracticable in the circumstances; or
p.000039: (b) the joint guardians agree that consultation is not necessary.
p.000039: (8) Where joint guardians disagree as to the exercise of their functions, either or both of them may
p.000039: apply to the sheriff for directions under section 3.
p.000039: (9) Where there are joint guardians, a third party in good faith is entitled to rely on the
p.000039: authority to act of any one or more of them.
p.000039:
p.000039: 63 Substitute guardian
p.000039: (1) In any case where an individual is appointed as guardian under section 58 the sheriff may, on an
p.000039: application, appoint to act as guardian in the event of the guardian so appointed becoming unable to
p.000039: act any individual or office holder who could competently be appointed by virtue of section 59.
p.000039: (2) In this Act an individual appointed under section 58 and an individual or office holder appointed under this
p.000039: section are referred to respectively as an “original guardian” and a “substitute guardian”.
p.000039: (3) The appointment of a substitute guardian shall be for the same period as the appointment of the original
p.000039: guardian under section 58(4).
p.000039:
p.000039: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000041: 41
p.000041: Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: (4) An application for appointment as a substitute guardian may be made at the time of the application for the
p.000041: appointment of the original guardian or at any time thereafter.
p.000041: (5) In making an order appointing an individual as substitute guardian with powers relating to the property or
p.000041: financial affairs of the adult the sheriff shall, except where—
p.000041: (a) the individual is unable to find caution; but
p.000041: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed substitute guardian,
p.000041: require an individual appointed as substitute guardian to find caution.
p.000041: (6) Subsection (1) shall apply to an individual who, having been appointed as a substitute guardian subsequently,
p.000041: by virtue of this section, becomes the guardian as it applies to an individual appointed under section 58 and, for this
p.000041: purpose, any reference in this section to the “original guardian” shall be construed accordingly.
p.000041: (7) Where the sheriff appoints a substitute guardian (other than a substitute guardian appointed in
p.000041: the same order as an original guardian) under subsection (1), the sheriff clerk shall send a copy of the
p.000041: interlocutor containing the order appointing the substitute guardian to the Public Guardian who shall—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000041: (b) notify the adult, the original guardian and the local authority and (in a case where the adult’s incapacity is
p.000041: by reason of, or by reasons which include, mental disorder and the guardianship order relates to the
p.000041: adult’s personal welfare or factors which include it) the Mental Welfare Commission.
p.000041: (8) On the death or incapacity of the original guardian, the substitute guardian shall, without undue delay, notify
p.000041: the Public Guardian—
p.000041: (a) of the death or incapacity (and where the original guardian has died, provide the Public Guardian with
p.000041: documentary evidence of the death); and
p.000041: (b) whether or not he is prepared to act as guardian.
p.000041: (9) The Public Guardian on being notified under subsection (8) shall, if the substitute guardian is
p.000041: prepared to act—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000041: (b) when satisfied that the substitute guardian has found caution if so required, issue the substitute guardian with
p.000041: a certificate of appointment;
p.000041: (c) notify the adult, the original guardian, the local authority and (in a case where the adult’s incapacity is by
p.000041: reason of, or by reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000041: welfare or factors which include it) the Mental Welfare Commission that the substitute guardian is acting.
p.000041: (10) Unless otherwise specified in the order appointing him, the substitute guardian shall have the same
p.000041: functions and powers as those exercisable by the original guardian immediately before the event mentioned in
p.000041: subsection (1).
p.000041:
p.000041: 42 Adults with Incapacity (Scotland) Act 2000
p.000041: (asp 4) Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: Functions etc. of guardian
p.000041: 64 Functions and duties of guardian
p.000041: (1) Subject to the provisions of this section, an order appointing a guardian may confer on him—
p.000041: (a) power to deal with such particular matters in relation to the property, financial affairs or personal
p.000041: welfare of the adult as may be specified in the order;
p.000041: (b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in
p.000041: the order;
p.000041: (c) power to pursue or defend an action of declarator of nullity of marriage, or of divorce or
p.000041: separation in the name of the adult;
p.000041: (d) power to manage the property or financial affairs of the adult, or such parts of them as may be
p.000041: specified in the order;
p.000041: (e) power to authorise the adult to carry out such transactions or categories of transactions as the
p.000041: guardian may specify.
p.000041: (2) A guardian may not—
p.000041: (a) place the adult in a hospital for the treatment of mental disorder against his will; or
p.000041: (b) consent on behalf of the adult to any form of treatment mentioned in section 48(1) or (2).
p.000041: (3) A guardian shall (unless prohibited by an order of the sheriff and subject to any conditions or
p.000041: restrictions specified in such an order) have power by virtue of his appointment to act as the adult’s legal
p.000041: representative in relation to any matter within the scope of the power conferred by the guardianship order.
p.000041: (4) The guardian shall not later than 7 days after any change of his own or the adult’s address
p.000041: notify the Public Guardian who shall—
p.000041: (a) notify the adult (in a case where it is the guardian’s address which has changed), the local authority and (in a
p.000041: case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the guardianship order
p.000041: relates to the adult’s personal welfare or factors which include it) the Mental Welfare Commission
p.000041: of the change; and
p.000041: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000041: (5) A guardian having powers relating to the property or financial affairs of the adult shall, subject to—
p.000041: (a) such restrictions as may be imposed by the court;
p.000041: (b) any management plan prepared under paragraph 1 of schedule 2; or
p.000041: (c) paragraph 6 of that schedule,
p.000041: be entitled to use the capital and income of the adult’s estate for the purpose of purchasing assets,
p.000041: services or accommodation so as to enhance the adult’s quality of life.
p.000041: (6) The guardian may arrange for some or all of his functions to be exercised by one or more persons
p.000041: acting on his behalf but shall not be entitled to surrender or transfer any part of them to another person.
p.000041:
p.000041: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000043: 43
p.000043: Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (7) The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or
p.000043: financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the
p.000043: guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect
p.000043: as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.
p.000043: (8) An interim guardian appointed under section 57(5) having powers relating to—
p.000043: (a) the property or financial affairs of an adult shall report to the Public Guardian;
p.000043: (b) the personal welfare of an adult shall report to the chief social work officer of the local authority,
p.000043: every month as to his exercise of those powers.
p.000043: (9) Where the chief social work officer of the local authority has been appointed guardian he shall, not later
p.000043: than 7 working days after his appointment, notify any person who received notification under section 58(7) of
p.000043: the appointment of the name of the officer responsible at any time for carrying out the functions and duties of
p.000043: guardian.
...
p.000043: under subsection (1) and the conditions under which they shall be exercised.
p.000043: (12) Schedule 2 (which makes provision as to the guardian’s management of the estate of an adult) has effect.
p.000043:
p.000043: 65 Records: guardians
p.000043: A guardian shall keep records of the exercise of his powers.
p.000043:
p.000043: 66 Gifts
p.000043: (1) A guardian having powers relating to the property or financial affairs of an adult may make a gift out of the
p.000043: adult’s estate only if authorised to do so by the Public Guardian.
p.000043: (2) Authorisation by the Public Guardian under subsection (1) may be given generally, or in respect of a particular
p.000043: gift.
p.000043: (3) On receipt of an application in the prescribed form for an authorisation to make a gift, the Public Guardian
p.000043: shall, subject to subsection (4), intimate the application to the adult, his nearest relative, his primary carer
p.000043: and any other person who the Public Guardian considers has an interest in the application and advise
p.000043: them of the prescribed period within which they may object to the granting of the application; and he shall not
p.000043: grant the application without affording to any objector an opportunity of being heard.
p.000043: (4) Where the Public Guardian is of the opinion that the value of the gift is such that intimation
p.000043: is not necessary, he may dispense with intimation.
p.000043: (5) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application.
p.000043:
p.000043: 44 Adults with Incapacity (Scotland) Act 2000
p.000043: (asp 4) Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (6) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000043: guardian and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000043: refuse the application without affording to the guardian, if he objects, an opportunity of being heard.
p.000043: (7) The Public Guardian may at his own instance or at the instance of the guardian or of any person who objects
p.000043: to the granting of the application remit the application for determination by the sheriff, whose
p.000043: decision shall be final.
p.000043: (8) A decision of the Public Guardian—
p.000043: (a) to grant an application under subsection (5) or to refuse an application; or
p.000043: (b) to refuse to remit an application to the sheriff under subsection (7), may be appealed to the sheriff, whose
p.000043: decision shall be final.
p.000043:
p.000043: 67 Effect of appointment and transactions of guardian
p.000043: (1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the
p.000043: scope of the authority conferred on the guardian except in a case where he has been authorised by the guardian
p.000043: under section 64(1)(e); but nothing in this subsection shall be taken to affect the capacity of the adult in
p.000043: relation to any other matter.
p.000043: (2) Where the guardian has powers relating to the property or financial affairs of the adult, the certificate of
...
p.000043: relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
p.000043: (4) The guardian shall be personally liable under any transaction entered into by him—
p.000043: (a) without disclosing that he is acting as guardian of the adult; or
p.000043: (b) which falls outwith the scope of his authority,
p.000043: but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this
p.000043: Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect
p.000043: of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.
p.000043: (5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the
p.000043: transaction that authority had been granted by the guardian under section 64(1)(e), the transaction shall not
p.000043: be void only on the ground that the adult lacked capacity.
p.000043: (6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith
p.000043: shall not be invalid on the ground only that—
p.000043: (a) the guardian acted outwith the scope of his authority; or
p.000043:
p.000043: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000045: 45
p.000045: Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act,
p.000045: or by the sheriff or by the Public Guardian; or
p.000045: (c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
p.000045: (7) In subsections (3) and (4) any reference to a guardian shall include a reference to a guardian
p.000045: (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an
p.000045: adult during his incapacity, if the guardianship is recognised by the law of Scotland.
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
p.000045: (b) who is the chief social work officer of a local authority, includes payment for items and services
p.000045: only if they would not normally be provided free of charge by the local authority to a person who is in similar
p.000045: circumstances but who does not have a guardian.
p.000045: (3) The local authority shall, in relation to the cost of any application by them for appointment of
p.000045: their chief social work officer as guardian or of any subsequent application by that officer while acting as
p.000045: guardian—
p.000045: (a) where the application relates to the personal welfare of the adult, meet such cost;
...
p.000045: sheriff shall, in determining the application, apportion the cost as he thinks fit.
p.000045: (4) Remuneration shall be payable out of the adult’s estate—
p.000045: (a) in respect of the exercise of functions relating to the personal welfare of the adult, only in a case where
p.000045: special cause is shown;
p.000045: (b) in respect of the exercise of functions relating to the property or financial affairs of the adult, unless
p.000045: the sheriff directs otherwise in the order appointing the guardian,
p.000045: but shall not be payable to a local authority in respect of the exercise by their chief social work
p.000045: officer of functions relating to the personal welfare of the adult.
p.000045: (5) In determining whether or not to make a direction under subsection (4)(b), the sheriff shall take into account
p.000045: the value of the estate and the likely difficulty of managing it.
p.000045: (6) Any remuneration payable to the guardian and the amount of outlays to be allowed under subsection
p.000045: (1) shall be fixed by the Public Guardian—
p.000045: (a) in a case where the guardian is required to submit accounts, when the guardian’s accounts for that period are
p.000045: audited;
p.000045:
p.000045: 46 Adults with Incapacity (Scotland) Act 2000
p.000045: (asp 4) Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) in any other case, on an application by the guardian,
p.000045: and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the
p.000045: estate.
p.000045: (7) The Public Guardian may allow payments to account to be made by way of remuneration
p.000045: during the accounting period if it would be unreasonable to expect the guardian to wait for payment until
p.000045: the end of an accounting period.
p.000045: (8) A decision by the Public Guardian—
p.000045: (a) under subsection (6) as to the remuneration payable and the outlays allowable to the guardian;
p.000045: (b) under subsection (7) as to payments to account to the guardian may be appealed to the sheriff, whose decision
p.000045: shall be final.
p.000045:
p.000045: 69 Forfeiture of guardian’s remuneration
p.000045: Where a guardian is in breach of any duty of care, fiduciary duty or obligation imposed by this Act the sheriff may, on
p.000045: an application being made to him by any person claiming an interest in the property, financial affairs or personal
p.000045: welfare of the adult, order the forfeiture (in whole or in part) of any remuneration due to the guardian.
p.000045:
p.000045: 70 Non-compliance with decisions of guardian with welfare powers
p.000045: (1) Where any decision of a guardian with powers relating to the personal welfare of the adult is not complied
p.000045: with by the adult or by any other person, and the adult or other person might reasonably be expected to comply with the
p.000045: decision, the sheriff may, on an application by the guardian—
p.000045: (a) make an order ordaining the adult or any person named in the order to implement the decision of the guardian;
p.000045: (b) where the non-compliance relates to a decision of the guardian as to the place of residence of the adult, grant a
p.000045: warrant authorising a constable—
p.000045: (i) to enter any premises where the adult is, or is reasonably supposed to be;
p.000045: (ii) to apprehend the adult and to remove him to such place as the guardian may direct.
p.000045: (2) Where any decision of a guardian with powers relating to the personal welfare of the adult is not
p.000045: complied with by any person other than the adult, and that person might reasonably be expected to comply with
p.000045: the decision, the sheriff may, on an application by the guardian make an order ordaining the person named in the order
p.000045: to implement the decision of the guardian.
p.000045: (3) On receipt of an application in the prescribed form for an order or warrant under subsection (1)
p.000045: or for an order under subsection (2), the court shall intimate the application to the adult or, as the case
p.000045: may be, to the person named in the application as a person against whom the order or warrant is sought and
p.000045: shall advise them of the prescribed period within which they may object to the granting of the application; and the
p.000045: sheriff shall not grant the order or warrant without affording to any objector an opportunity of being
p.000045: heard.
p.000045: (4) Having heard any objections as mentioned in subsection (3), the sheriff may grant the application.
p.000045:
p.000045: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000047: 47
p.000047: Part 6—Intervention orders and guardianship orders
p.000047:
p.000047: (5) A constable executing a warrant under subsection (1)(b) may use such force as is reasonable in
p.000047: the circumstances and shall be accompanied by the guardian or such person as the guardian may authorise in
p.000047: writing.
p.000047: (6) In this section any reference to a guardian shall include a reference to a guardian (however
p.000047: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000047: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000047:
p.000047: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000047: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000047: (1) The sheriff, on an application made to him by an adult subject to guardianship or by any other person
p.000047: claiming an interest in the adult’s property, financial affairs or personal welfare, may—
p.000047: (a) replace a guardian by an individual or office holder nominated in the application if he is satisfied, in
p.000047: relation to an individual, that he is suitable for appointment having regard to the matters set out in section
p.000047: 59(3) to (5);
p.000047: (b) remove a guardian from office if he is satisfied—
p.000047: (i) that there is a substitute guardian who is prepared to act as guardian; or
p.000047: (ii) in a case where there are joint guardians, that the remaining guardian is or remaining guardians are prepared
p.000047: to continue to act; or
p.000047: (c) recall a guardianship order or otherwise terminate a guardianship if he is satisfied—
p.000047: (i) that the grounds for appointment of a guardian are no longer fulfilled; or
p.000047: (ii) that the interests of the adult in his property, financial affairs or personal welfare can be satisfactorily
p.000047: safeguarded or promoted otherwise than by guardianship,
p.000047: and where an application under this subsection is granted, the sheriff clerk shall send a copy of the interlocutor to
p.000047: the Public Guardian.
p.000047: (2) In making an order replacing a guardian by an individual with powers relating to the property or
p.000047: financial affairs of the adult or removing a guardian from office where there is a substitute guardian with such powers
p.000047: prepared to act as guardian, the sheriff shall, except where—
p.000047: (a) the individual or substitute guardian is unable to find caution; but
p.000047: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian or substitute guardian, as the
p.000047: case may be,
p.000047: require an individual appointed as guardian or the substitute guardian to find caution.
p.000047: (3) The Public Guardian on receiving a copy of the interlocutor under subsection (1) shall—
p.000047: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000047: (b) where the sheriff—
p.000047:
p.000047: 48 Adults with Incapacity (Scotland) Act 2000
p.000047: (asp 4) Part 6—Intervention orders and guardianship orders
p.000047:
p.000047: (i) replaces the guardian by the individual or office holder nominated in the application, when satisfied
p.000047: that, in the case of an individual, the individual has found caution if so required, issue him with a
p.000047: certificate of appointment;
p.000047: (ii) removes a guardian from office and a substitute guardian is prepared to act, when satisfied that the substitute
p.000047: guardian has found caution if so required, issue the substitute guardian with a certificate of appointment;
p.000047: (iii) removes a joint guardian from office and there is a joint guardian who is prepared to continue to act,
p.000047: issue a remaining joint guardian with a new certificate of appointment;
p.000047: (c) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000047: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000047: welfare or factors including it) the Mental Welfare Commission.
p.000047: (4) Where the sheriff recalls the guardianship order he may at the same time make an intervention
p.000047: order.
p.000047: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000047: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000047: his incapacity, if the guardianship is recognised by the law of Scotland; and “guardianship order” shall be construed
p.000047: accordingly.
p.000047:
p.000047: 72 Discharge of guardian with financial powers
p.000047: (1) At any time after—
p.000047: (a) the recall of a guardianship order appointing a guardian with powers relating to the property or financial
p.000047: affairs of an adult;
p.000047: (b) the resignation, removal or replacement of such a guardian; or
p.000047: (c) the death of the adult,
p.000047: the Public Guardian may, on an application by the former guardian or, if the former guardian has died,
p.000047: his representative, grant a discharge in respect of the former guardian’s actings and intromissions with the
p.000047: estate of the adult.
p.000047: (2) On receipt of an application in the prescribed form, the Public Guardian shall intimate the application to the
p.000047: adult, his nearest relative, his primary carer and any other person who the Public Guardian considers has an interest
p.000047: in the application and advise them of the prescribed period within which they may object to the granting of the
p.000047: application; and he shall not grant the application without affording to any objector an opportunity of being heard.
p.000047: (3) Having heard any objections as mentioned in subsection (2) the Public Guardian may grant the application.
p.000047: (4) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000047: applicant and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000047: refuse the application without affording to the applicant, if he objects, an opportunity of being heard.
p.000047: (5) The Public Guardian may at his own instance or at the instance of the applicant or of any person who objects
p.000047: to the granting of the application remit the application for determination by the sheriff, whose decision
p.000047: shall be final.
p.000047:
p.000047: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000049: 49
p.000049: Part 6—Intervention orders and guardianship orders
p.000049:
p.000049: (6) A decision of the Public Guardian—
p.000049: (a) to grant a discharge under subsection (1) or to refuse a discharge;
p.000049: (b) to grant an application under subsection (3) or to refuse an application;
p.000049: (c) to refuse to remit an application to the sheriff under subsection (5) may be appealed to the sheriff, whose
p.000049: decision shall be final.
p.000049:
p.000049: 73 Recall of powers of guardian
p.000049: (1) The Public Guardian, at his own instance or on an application by any person (including the adult himself)
p.000049: claiming an interest in the property and financial affairs of an adult in respect of whom a guardian has been
p.000049: appointed, may recall the powers of a guardian relating to the property or financial affairs of the adult if it
p.000049: appears to him that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his property and financial affairs can be satisfactorily safeguarded or promoted
p.000049: otherwise than by guardianship.
p.000049: (2) Where the Public Guardian recalls the powers of a guardian under subsection (1) he shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult, the guardian and the local authority.
...
p.000049: guardian), at their own instance or on an application by any person (including the adult himself) claiming an interest
p.000049: in the personal welfare of the adult, may recall the powers of a guardian relating to the personal
p.000049: welfare of the adult if it appears to them that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than
p.000049: by guardianship.
p.000049: (4) Where the Mental Welfare Commission or the local authority recall the powers of a guardian under
p.000049: subsection (3) they shall notify the other and the Public Guardian who shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult and the guardian.
p.000049: (5) The Public Guardian, Mental Welfare Commission or local authority, as the case may be, shall—
p.000049: (a) where acting on an application, on receipt of the application in the prescribed form intimate it;
p.000049: (b) where acting at his or their own instance, intimate the intention to recall the powers of a
p.000049: guardian,
p.000049:
p.000049: 50 Adults with Incapacity (Scotland) Act 2000
p.000049: (asp 4) Part 6—Intervention orders and guardianship orders
p.000049:
p.000049: to the adult, his nearest relative, his primary carer and any person who he or they consider has an
p.000049: interest in the recall of the powers and advise them of the prescribed period within which they may object to such
p.000049: recall; and he or they shall not recall the powers without affording to any objector an opportunity of being heard.
p.000049: (6) Having heard any objections as mentioned in subsection (5) the Public Guardian, Mental Welfare Commission or
p.000049: local authority may recall the powers of a guardian.
p.000049: (7) Where the Public Guardian, Mental Welfare Commission or local authority proposes or propose to refuse the
p.000049: application he or they shall intimate the decision to the applicant and the adult and advise them of the prescribed
p.000049: period within which they may object to the refusal; and he or they shall not refuse the application without
p.000049: affording to the applicant or the adult, if he objects, an opportunity of being heard.
p.000049: (8) The Public Guardian, Mental Welfare Commission or local authority may at his or their own instance or at the
p.000049: instance of an applicant or of any person who objects to the recall of the powers of the guardian remit the matter for
p.000049: determination by the sheriff whose decision shall be final.
p.000049: (9) A decision of—
...
p.000049: powers by the Mental Welfare Commission or the local authority.
p.000049:
p.000049: 74 Variation of guardianship order
p.000049: (1) The sheriff, on an application by any person (including the adult himself) claiming an interest in the
p.000049: property, financial affairs or personal welfare of the adult, may vary the powers conferred by the guardianship order
p.000049: and may vary any existing ancillary order.
p.000049: (2) In varying powers relating to the property or financial affairs of the adult conferred by the guardianship
p.000049: order or in varying any ancillary order in relation to such powers the sheriff shall, except where—
p.000049: (a) the guardian is unable to find caution; but
p.000049: (b) the sheriff is satisfied that nevertheless it is appropriate to vary the powers conferred by the
p.000049: guardianship order or to vary the ancillary order,
p.000049: require the guardian to find caution.
p.000049: (3) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000049: or guardianship order which may have been previously made in relation to the adult or any other order varying
p.000049: such an order, and to any order ancillary to such an order.
p.000049: (4) Notwithstanding subsection (1), an application which seeks to vary the powers conferred by a guardianship order
p.000049: or to vary an ancillary order so that—
p.000049:
p.000049: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000051: 51
p.000051: Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (a) a guardian, appointed only in relation to the personal welfare of an adult, shall be appointed also or instead
p.000051: in relation to the property or financial affairs of the adult; or
p.000051: (b) a guardian, appointed only in relation to the property or financial affairs of an adult, shall be
p.000051: appointed also or instead in relation to the personal welfare of the adult;
p.000051: shall be made under section 57.
p.000051: (5) Where the sheriff varies the powers conferred by a guardianship order or varies an ancillary order
p.000051: under this section, the sheriff clerk shall send a copy of the interlocutor containing the order to the Public Guardian
p.000051: who shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000051: (b) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000051: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000051: welfare or factors including it) the Mental Welfare Commission; and
p.000051: (c) if he is satisfied that the guardian has caution, if so required, which covers the varied order,
p.000051: issue a new certificate of appointment where necessary.
p.000051:
p.000051: 75 Resignation of guardian
p.000051: (1) A joint guardian, or a guardian in respect of whom a substitute guardian has been appointed, may
p.000051: resign by giving notice in writing of his intention to do so to the Public Guardian and the local authority and (in a
p.000051: case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship
p.000051: order relates to the adult’s personal welfare or factors including it) the Mental Welfare Commission.
p.000051: (2) The resignation of a guardian as mentioned in subsection (1)—
p.000051: (a) shall not take effect unless—
p.000051: (i) the remaining joint guardian is willing to continue to act; or
p.000051: (ii) the substitute guardian is willing to act;
p.000051: (b) shall take effect on the receipt by the Public Guardian of notice in writing under subsection (1) together
p.000051: with evidence as to the matters contained in paragraph (a)(i) or (ii).
p.000051: (3) On receiving notice in writing and evidence as mentioned in subsection (2)(b), the Public Guardian
p.000051: shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000051: (b) if satisfied that the substitute guardian has found caution if so required, issue him with a new certificate of
p.000051: appointment;
p.000051: (c) issue a remaining joint guardian with a new certificate of appointment;
p.000051: (d) notify the adult.
p.000051:
p.000051: 52 Adults with Incapacity (Scotland) Act 2000
p.000051: (asp 4) Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (4) A substitute guardian who has not subsequently become guardian by virtue of section 63 may resign by giving
p.000051: notice in writing to the Public Guardian and the local authority and (in the case mentioned in subsection (1))
p.000051: the Mental Welfare Commission and the resignation shall take effect on the date of receipt of the notice by the
p.000051: Public Guardian; and on its becoming effective, the Public Guardian shall—
p.000051: (a) notify the guardian and the adult; and
p.000051: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000051: (5) A guardian—
p.000051: (a) who has no joint guardian; or
p.000051: (b) in respect of whom no substitute guardian has been appointed; or
p.000051: (c) being a joint guardian or guardian in respect of whom a substitute has been appointed who cannot
p.000051: effectively resign by reason of subsection (2)(a)(i) or (ii),
p.000051: shall not resign until a replacement guardian has been appointed under section 71.
p.000051:
p.000051: 76 Change of habitual residence
p.000051: (1) Where the guardian is the chief social work officer of the local authority and the adult changes his place of
p.000051: habitual residence to the area of another local authority, the chief social work officer of the first mentioned
p.000051: local authority shall notify the chief social work officer of the second mentioned local authority (the
p.000051: “receiving authority”) who shall become guardian on receipt of the notification and shall within 7 days
p.000051: of that receipt notify the Public Guardian and (in a case where the incapacity of the adult is by reason of, or
p.000051: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000051: factors which include it) the Mental Welfare Commission.
p.000051: (2) The Public Guardian shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv) and issue a
p.000051: certificate of appointment to the new guardian; and
p.000051: (b) subject to subsection (4), notify the adult within 7 days of receipt of the notification from the
p.000051: receiving authority.
p.000051: (3) Subject to subsection (4), the chief social work officer of the receiving authority shall, within 7 working
p.000051: days of receipt of the notification, notify any person who received notification under section 58(7)
p.000051: of the appointment of the name of the officer responsible at any time for carrying out the functions and
p.000051: duties of guardian.
p.000051: (4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
p.000053: of the person or guardian if he is unaware of the termination or ending of that authority.
p.000053: (4) No title to any interest in heritable property acquired by a third party in good faith and for value from a
p.000053: person authorised under an intervention order or from a guardian having powers relating to the property
p.000053: or financial affairs of the adult shall be challengeable on the grounds only of the termination or
p.000053: coming to an end of the authority of the person or of the guardian.
p.000053: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000053: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000053: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000053:
p.000053: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000053: (1) The Public Guardian shall—
p.000053: (a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by
p.000053: him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the
p.000053: appointment of the guardian was recorded or registered under section 61; or
p.000053: (b) where an adult in respect of whom there was such a guardianship order has died,
p.000053: apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other
p.000053: document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
p.000053: suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest
p.000053: thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.
p.000053: (2) Subsection (1) shall be without prejudice to sections 69 and 82.
p.000053:
p.000053: 82 Limitation of liability
p.000053: (1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised
p.000053: under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of
p.000053: care or fiduciary duty owed to the adult if he has or they have—
p.000053: (a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
p.000053: principles.
p.000053: (2) In this section any reference to—
p.000053: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000053: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000053: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and
p.000053:
p.000053: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000055: 55
p.000055: Part 7—Miscellaneous
p.000055:
p.000055: (c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000055: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000055: having effect during the granter’s incapacity.
p.000055:
p.000055: 83 Offence of ill-treatment and wilful neglect
p.000055: (1) It shall be an offence for any person exercising powers under this Act relating to the personal
p.000055: welfare of an adult to ill-treat or wilfully neglect that adult.
p.000055: (2) A person guilty of an offence under subsection (1) shall be liable—
p.000055: (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory
p.000055: maximum or both;
p.000055: (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
p.000055:
p.000055: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000055: (1) Parts 1, 5, 6 and 7 shall apply to a guardian appointed under section 57(2)(c) or section 58(1)
p.000055: of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Act”) as they apply to a guardian with powers
p.000055: relating to the personal welfare of an adult appointed under Part 6; and accordingly the 1995 Act shall be
p.000055: amended as follows.
p.000055: (2) After section 58 there shall be inserted—
p.000055: “58A Application of Adults with Incapacity (Scotland) Act 2000
p.000055: (1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with
p.000055: Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—
p.000055: (a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this
p.000055: section referred to as a “guardianship order”) whether appointed before or after the coming into force of these
p.000055: provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed
p.000055: under section 58 of that Act;
p.000055: (b) to a person authorised under an intervention order under section 60A of this Act as they apply to a person so
p.000055: authorised under section 53 of that Act.
p.000055: (2) In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers
p.000055: under section 64(11) of the 2000 Act and—
p.000055: (a) shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person;
p.000055: (b) may appoint a joint guardian;
p.000055: (c) may appoint a substitute guardian;
p.000055: (d) may make such consequential or ancillary order, provision or direction as it considers appropriate.
p.000055: (3) Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the
p.000055: court may—
p.000055:
p.000055: 56 Adults with Incapacity (Scotland) Act 2000
p.000055: (asp 4) Part 7—Miscellaneous
p.000055:
p.000055: (a) make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate;
p.000055: (b) order that any reports relating to the person who will be the subject of the order be lodged with the court
p.000055: or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;
p.000055: (c) make such further inquiry or call for such further information as appears to it to be appropriate;
p.000055: (d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings.
p.000055: (4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the
p.000055: order to the Public Guardian who shall—
p.000055: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of
p.000055: the 2000 Act;
p.000055: (b) unless he considers that the notification would be likely to pose a serious risk to the person’s health
p.000055: notify the person of the appointment of the guardian; and
p.000055: (c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.
p.000055: (5) A guardianship order shall continue in force for a period of 3 years or such other period
p.000055: (including an indefinite period) as, on cause shown, the court may determine.
p.000055: (6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or
p.000055: 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84
p.000055: of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be
p.000055: determined in accordance with this Act as it was immediately in force before that date.”.
p.000055:
p.000055: 85 Jurisdiction and private international law
p.000055: Schedule 3 shall have effect for the purposes of defining the jurisdiction, in respect of adults who are incapable
p.000055: within the meaning of this Act, of the Scottish judicial and administrative authorities and for making
p.000055: provision as to the private international law of Scotland in that respect.
p.000055:
p.000055: 86 Regulations
p.000055: (1) Any power of the Scottish Ministers to make regulations under this Act shall be exercisable by
p.000055: statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000055: (2) Any such power may be exercised to make different provision for different cases or classes of case
p.000055: and includes power to make such incidental, supplemental, consequential or transitional provision or savings as appear
p.000055: to the Scottish Ministers to be appropriate.
p.000055:
p.000055: 87 Interpretation
p.000055: (1) In this Act, unless the context otherwise requires—
p.000055:
p.000055: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000057: 57
p.000057: Part 7—Miscellaneous
p.000057:
p.000057: “adult” shall be construed in accordance with section 1;
p.000057: “continuing attorney” shall be construed in accordance with section 15; “guardianship order” shall be construed in
p.000057: accordance with section 58; “incapable” and “incapacity” shall be construed in accordance with section 1; “intervention
p.000057: order” shall be construed in accordance with section 53;
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
p.000057: of that Act;
p.000057: “office holder”, in relation to a guardian, means the chief social work officer of the local authority;
p.000057: “person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public
p.000057: Guardian;
p.000057: “power of attorney” includes a factory and commission;
p.000057: “prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public
p.000057: Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;
p.000057: “primary carer” in relation to an adult, means the person or organisation primarily engaged in caring for him;
p.000057: “Public Guardian” shall be construed in accordance with section 6;
p.000057: “State hospital” shall be construed in accordance with section 102 of the National Health Service (Scotland) Act 1978
p.000057: (c.29);
p.000057: “substitute guardian” shall be construed in accordance with section 63; “welfare attorney” shall be construed in
p.000057: accordance with section 16; “withdrawer” shall be construed in accordance with section 26;
p.000057: “the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).
p.000057: (2) Where—
p.000057: (a) an adult has no spouse or has a spouse but subsection (3) applies; and
p.000057: (b) a person of the same sex as the adult—
p.000057:
p.000057: 58 Adults with Incapacity (Scotland) Act 2000
p.000057: (asp 4) Part 7—Miscellaneous
p.000057:
p.000057: (i) is and has been, for a period of not less than 6 months, living with the adult in a relationship which has the
p.000057: characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife; or
p.000057: (ii) if the adult is for the time being an in-patient in a hospital, had so lived with the adult until
p.000057: the adult was admitted;
p.000057: then that person shall be treated as the nearest relative.
p.000057: (3) This subsection applies where the adult’s spouse is permanently separated from the adult, either by
p.000057: agreement or under an order of a court, or has deserted, or been deserted by, the adult for a period and the desertion
p.000057: persists.
p.000057: (4) For the purposes of this Act, a person is bankrupt if his estate has been sequestrated for insolvency or he has
p.000057: granted a trust deed which has become a protected trust deed under Schedule 5 to the Bankruptcy (Scotland) Act
p.000057: 1985 (c.66), or he has been adjudged bankrupt in England and Wales, or he has become bankrupt (however expressed)
p.000057: under the law of any other country.
p.000057:
p.000057: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000057: (1) Schedule 4, which contains provisions relating to the continuation of existing powers, shall have effect.
p.000057: (2) Schedule 5, which contains minor amendments and amendments consequential on the provisions of this Act,
p.000057: shall have effect.
p.000057: (3) The enactments mentioned in schedule 6 are hereby repealed to the extent specified in the second column of that
p.000057: schedule.
p.000057:
p.000057: 89 Citation and commencement
p.000057: (1) This Act may be cited as the Adults with Incapacity (Scotland) Act 2000.
p.000057: (2) This Act shall come into force on such day as the Scottish Ministers may by order made by statutory
p.000057: instrument appoint and different days may be appointed for different purposes.
p.000057: (3) Without prejudice to the provisions of schedule 4, an order under subsection (2) may make such
p.000057: transitional provisions and savings as appear to the Scottish Ministers necessary or expedient in connection
p.000057: with any provision brought into force by the order; and where it does so, the statutory instrument under which it is
p.000057: made shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000057:
p.000057: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000059: 59
p.000059: Schedule 1—Managers of an establishment
p.000059:
p.000059: SCHEDULE 1
p.000059: (introduced by section 35)
p.000059: MANAGERS OF AN ESTABLISHMENT
p.000059: 1 For the purposes of Part 4 “the managers” of an establishment means—
p.000059: (a) in relation to a hospital vested in the Scottish Ministers under the National Health Service (Scotland) Act
p.000059: 1978 (c.29), the Health Board responsible for the administration of that hospital;
p.000059: (b) in relation to a hospital managed by a National Health Service trust established under section 12A of the
p.000059: said Act of 1978, the directors of the trust;
p.000059: (c) in relation to a State hospital—
p.000059: (i) the Scottish Ministers; or
p.000059: (ii) if a State Hospital Management Committee has been appointed to manage that hospital, that
p.000059: Committee; or
p.000059: (iii) if the management of that hospital has been delegated to a Health Board, to a Special Health Board, to
p.000059: a National Health Service trust or to the Common Services Agency for the Scottish Health Service, that Board,
p.000059: trust or Agency, as the case may be, or any person appointed by the Board, trust or agency, as the case may be, to
p.000059: manage the hospital;
p.000059: (d) in relation to a private hospital registered under Part IV of the 1984 Act and an unregistered hospital, the
p.000059: person or persons carrying on the hospital or any other person appointed by that person or persons to manage the
p.000059: hospital;
p.000059: (e) in relation to a residential establishment provided by a local authority under section 59 of the
p.000059: Social Work (Scotland) Act 1968 (c.49), the local authority or any person appointed by the local authority to manage
p.000059: the establishment;
p.000059: (f) in relation to an establishment in respect of which there is registration under section 62 or 63 of
p.000059: the said Act of 1968, the person registered in respect of it or any person appointed by that person to manage the
p.000059: establishment provided that the person so appointed has been named in the application for registration
p.000059: as a person who may be so appointed;
p.000059: (g) in relation to a nursing home in respect of which there is registration under the Nursing Homes
p.000059: Registration (Scotland) Act 1938 (c.73), the person registered in respect of it or any person appointed by that person
p.000059: to manage the nursing home provided that the person so appointed has been named in the application as a
p.000059: person who may be so appointed.
p.000059: 2 The Scottish Ministers may by regulations amend the list of managers in paragraph 1.
p.000059:
p.000059: 60 Adults with Incapacity (Scotland) Act 2000
p.000059: (asp 4) Schedule 2—Management of estate of adult
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059: Management plan
p.000059: SCHEDULE 2
p.000059: (introduced by section 64)
p.000059: MANAGEMENT OF ESTATE OF ADULT
p.000059: 1 (1) A guardian with powers relating to the property and financial affairs of the adult shall, unless the
p.000059: sheriff otherwise directs, prepare a plan (a “management plan”), taking account of any directions given
p.000059: by the sheriff in the order appointing him, for the management, investment and realisation of the adult’s
p.000059: estate and for the application of the estate to the adult’s needs, so far as the estate falls within the guardian’s
p.000059: authority.
p.000059: (2) The management plan shall be submitted in draft by the guardian to the Public Guardian for his approval, along
p.000059: with the inventory of the adult’s estate prepared under paragraph 3, not more than one month, or such other
p.000059: period as the Public Guardian may allow, after the submission of the inventory.
p.000059: (3) The Public Guardian may approve the management plan submitted to him under sub- paragraph (2) or he may
p.000059: approve it with amendments and the plan as so approved or as so amended shall be taken account of by the guardian in
p.000059: the exercise of his functions in relation to the adult.
p.000059: (4) Before the management plan is approved, the guardian shall, unless the sheriff on appointing him
p.000059: has conferred wider powers, have power only to—
p.000059: (a) ingather and take control of the assets of the adult’s estate so as to enable him, when the management plan
p.000059: has been approved, to intromit with them;
p.000059: (b) make such payments as are necessary to provide for the adult’s day to day needs.
p.000059: (5) The Public Guardian may authorise the guardian to exercise any function within the scope of his
p.000059: authority before the management plan is approved, if it would be unreasonable to delay him exercising that
p.000059: function until the plan had been approved.
p.000059: (6) The guardian shall keep the management plan under review and shall put forward to the Public Guardian
p.000059: proposals for variation of it whenever it appears to him to be appropriate.
p.000059: (7) The Public Guardian—
p.000059: (a) may at any time propose any variation to the management plan; and
p.000059: (b) shall review the plan whenever the guardian submits his accounts for audit.
p.000059: (8) The Public Guardian shall notify the guardian of any variation which he proposes to make to the
p.000059: management plan and shall not make any such variation without affording the guardian an opportunity to object.
p.000059: (9) Having heard any objections by the guardian as mentioned in sub-paragraph (8) the Public Guardian
p.000059: may make the variation with or without amendment.
p.000059: Directions from sheriff
p.000059: 2 Where the guardian disagrees with any decision made by the Public Guardian in relation to a management
p.000059: plan prepared under paragraph 1, he may apply to the sheriff for a determination in relation to the matter
p.000059: and the sheriff’s decision shall be final.
p.000059:
p.000059: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000061: 61
p.000061: Schedule 2—Management of estate of adult
p.000061:
p.000061: Inventory of estate
p.000061: 3 (1) A guardian with powers relating to the property or financial affairs of the adult shall, as soon after his
p.000061: appointment as possible and in any event within 3 months of the date of registration of his appointment or such other
p.000061: period as the Public Guardian may allow, submit to the Public Guardian for examination and approval a full
p.000061: inventory of the adult’s estate in so far as it falls within the scope of the guardian’s authority, along with such
p.000061: supporting documents and additional information as the Public Guardian may require.
p.000061: (2) The inventory shall be in a form, and contain information, prescribed by the Public Guardian.
p.000061: (3) Errors in and omissions from the inventory which are discovered by the guardian after the inventory has been
p.000061: approved by the Public Guardian shall be notified by him to the Public Guardian within 6 months of the date of
p.000061: discovery or when submitting his next accounts to the Public Guardian, whichever occurs sooner.
p.000061: (4) The Public Guardian may dispense with the need for the guardian to submit an inventory under sub-paragraph
p.000061: (1) or may require the guardian to take such other action as he thinks appropriate in lieu of submitting an
p.000061: inventory.
p.000061: Money
p.000061: 4 The guardian shall deposit all money received by him as guardian in a bank or a building
p.000061: society in an account in the name of the adult and shall ensure that all sums in excess of £500 (or such other sum as
p.000061: may be prescribed) so deposited shall earn interest.
p.000061: Powers relating to investment and carrying on of business by guardian
p.000061: 5 (1) Subject to the following provisions of this paragraph, a guardian with powers relating to the property or
p.000061: financial affairs of the adult shall be entitled—
p.000061: (a) after obtaining and considering proper advice, to retain any existing investment of the adult;
p.000061: (b) to use the adult’s estate to make new investments in accordance with the management plan prepared
p.000061: under paragraph 1 or with the consent of the Public Guardian.
p.000061: (2) For the purpose of sub-paragraph (1)—
p.000061: (a) proper advice is the advice of a person authorised to carry on investment business in the United Kingdom for the
p.000061: purposes of the Financial Services Act 1986 (c.60) who is not the guardian or any person who is an employer, employee
p.000061: or business partner of the guardian; and
p.000061: (b) the advice must be given or subsequently confirmed in writing.
p.000061: (3) The guardian shall keep every investment under review and in doing so shall have regard to the
p.000061: following principles—
p.000061: (a) that the investment must be prudent;
p.000061: (b) that there must be diversification of investments; and
p.000061: (c) that the investment must be suitable for the adult’s estate.
p.000061: (4) The Public Guardian may at any time direct the guardian to realise any investment.
p.000061: (5) The guardian may, subject to any direction given by the Public Guardian, carry on any business of the adult.
p.000061:
p.000061: 62 Adults with Incapacity (Scotland) Act 2000
p.000061: (asp 4) Schedule 2—Management of estate of adult
p.000061:
p.000061: (6) Any decision by the Public Guardian—
p.000061: (a) under sub-paragraph (4) as to directing the guardian to realise investments;
p.000061: (b) under sub-paragraph (5) as to giving directions to the guardian in carrying on the business of the adult,
p.000061: may be appealed to the sheriff, whose decision shall be final.
p.000061: Purchase or disposal of accommodation
p.000061: 6 (1) The guardian shall not, without the consent of the Public Guardian—
p.000061: (a) in principle; and
p.000061: (b) to the purchase or selling price,
p.000061: purchase accommodation for, or dispose of any accommodation used for the time being as a dwelling house by, the adult.
p.000061: (2) On receipt of an application for consent in principle under sub-paragraph (1)(a) in the prescribed form, the
p.000061: Public Guardian shall intimate the application to the adult, his nearest relative, his primary carer and any
p.000061: person who the Public Guardian considers has an interest in the application and advise them of the prescribed period
p.000061: within which they may object to the granting of the application.
p.000061: (3) The Public Guardian shall remit any objection under sub-paragraph (2) for determination by
p.000061: the sheriff (whose decision shall be final) and—
p.000061: (a) if the sheriff upholds the objection, shall refuse the application;
p.000061: (b) if the sheriff dismisses the objection, shall grant the application.
p.000061: (4) Where the Public Guardian proposes to refuse the application other than under sub-paragraph
p.000061: (3)(a) he shall intimate his decision to the applicant and advise him of the prescribed period within which he may
p.000061: object to the refusal; and he shall not refuse the application without affording the applicant, if he objects, an
p.000061: opportunity of being heard.
p.000061: (5) Having heard any objections as mentioned in sub-paragraph (4) or where there is no objection as
p.000061: mentioned in sub-paragraph (2), the Public Guardian may grant the application.
p.000061: (6) The Public Guardian may at his own instance or at the instance of any person who objects to the
p.000061: granting or refusal (other than a refusal under sub-paragraph (3)(a)) of the application remit the application to the
p.000061: sheriff for determination by the sheriff, whose decision shall be final.
p.000061: (7) If consent in principle to the purchase or disposal of the accommodation is given, the guardian shall apply to
p.000061: the Public Guardian for consent under sub-paragraph (1)(b) to the purchase or selling price.
p.000061: (8) A decision of the Public Guardian—
p.000061: (a) to grant or to refuse (other than under sub-paragraph (3)(a)) an application; or
p.000061: (b) to refuse to remit an application to the sheriff under sub-paragraph (6), may be appealed to the sheriff, whose
p.000061: decision shall be final.
p.000061: (9) A decision of the Public Guardian to give or to refuse consent under sub-paragraph (1)(b) shall be
p.000061: final.
p.000061:
p.000061: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000063: 63
p.000063: Schedule 2—Management of estate of adult
p.000063:
p.000063: Accounting and auditing
p.000063: 7 (1) A guardian with powers relating to the property or financial affairs of the adult shall submit
p.000063: accounts in respect of each accounting period to the Public Guardian within one month from the end of the
p.000063: accounting period or such longer period as the Public Guardian may allow.
p.000063: (2) There shall be submitted with the accounts under sub-paragraph (1) such supporting documents as the
p.000063: Public Guardian may require, and the Public Guardian may require the guardian to furnish him with such information in
p.000063: connection with the accounts as the Public Guardian may determine.
p.000063: (3) For the purposes of this paragraph, the first accounting period shall commence with the date of appointment of
p.000063: the guardian and end at such date not later than 18 months after the date of registration of the guardian’s
p.000063: appointment as the Public Guardian may determine; and thereafter each accounting period shall be a year commencing
p.000063: with the date on which the immediately previous accounting period ended.
p.000063: (4) Notwithstanding the foregoing provisions of this paragraph, the Public Guardian may at any time—
p.000063: (a) give directions as to the frequency of accounting periods;
p.000063: (b) dispense with the need for the submission of accounts by the guardian; or
p.000063: (c) require the guardian to do anything which the Public Guardian thinks appropriate in lieu of submitting accounts.
p.000063: (5) The accounts shall be in such form as is prescribed by the Public Guardian and different forms may be
p.000063: prescribed for different cases or descriptions of case.
...
p.000063: from such person and in such form as may be prescribed by the Public Guardian, certifying the accuracy of that part of
p.000063: the accounts.
p.000063: (7) The accounts submitted to the Public Guardian under sub-paragraph (1) (other than any part to which a
p.000063: certificate as mentioned in sub-paragraph (6) relates) shall be audited by the Public Guardian or by an accountant
p.000063: appointed by, and responsible to, the Public Guardian for that purpose.
p.000063: Approval of accounts
p.000063: 8 (1) After the accounts of the guardian have been audited, the Public Guardian shall, if the accounts appear to
p.000063: him—
p.000063: (a) to be a true and fair view of the guardian’s management of the adult’s estate, approve them and fix
p.000063: the remuneration (if any) due to the guardian;
p.000063: (b) not to be a true and fair view of the guardian’s management of the adult’s estate, prepare a report as to the
p.000063: extent to which they do not represent such a true and fair view and adjusting the accounts accordingly.
p.000063: (2) The Public Guardian may approve the accounts, notwithstanding any minor inconsistencies or
p.000063: absence of full documentation in the accounts, if he is satisfied that the guardian acted reasonably and in good faith.
p.000063: (3) The Public Guardian shall send any report prepared by him under sub-paragraph (1)(b) to the guardian, who may
p.000063: object to anything contained in the report within 28 days of it being sent to him.
p.000063:
p.000063: 64 Adults with Incapacity (Scotland) Act 2000
p.000063: (asp 4) Schedule 3—Jurisdiction and private international law
p.000063:
p.000063: (4) If no objection is taken to the report, the accounts as adjusted by the Public Guardian shall be regarded as
p.000063: approved by him.
p.000063: (5) Where any objection taken to the report cannot be resolved between the guardian and the Public Guardian, the
p.000063: matter may be determined by the sheriff on an application by the guardian, and the sheriff’s decision shall be final.
p.000063: (6) Without prejudice to sub-paragraph (7), the guardian shall be liable to make good any deficiency revealed by
p.000063: the accounts as approved by the Public Guardian under sub- paragraph (1)(a).
p.000063: (7) Where a deficiency is revealed as mentioned in sub-paragraph (6), the Public Guardian may require the
p.000063: guardian to pay interest to the adult’s estate on the amount of the deficiency at the rate fixed by Act of
p.000063: Sederunt as applicable to a decree of the sheriff in respect of the period for which it appears that the deficiency has
p.000063: existed.
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063: General
p.000063: SCHEDULE 3
p.000063: (introduced by section 85)
p.000063: JURISDICTION AND PRIVATE INTERNATIONAL LAW
p.000063: 1 (1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application
p.000063: or other proceedings and otherwise carry out functions under this Act in relation to an adult if—
p.000063: (a) the adult is habitually resident in Scotland; or
p.000063: (b) property which is the subject of the application or proceedings or in respect of which functions are
p.000063: carried out under this Act is in Scotland; or
p.000063: (c) the adult, although not habitually resident in Scotland is there or property belonging to the adult
p.000063: is there and, in either case, it is a matter of urgency that the application is or the proceedings are dealt with; or
p.000063: (d) the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary
p.000063: nature and its effect limited to Scotland.
p.000063: (2) As from the ratification date, the Scottish judicial and administrative authorities shall, in addition to the
p.000063: jurisdiction mentioned in sub-paragraph (1) in the circumstances set out therein, have the jurisdiction
p.000063: mentioned in that sub-paragraph in the following circumstances—
p.000063: (a) the adult—
p.000063: (i) is a British citizen; and
p.000063: (ii) has a closer connection with Scotland than with any other part of the United Kingdom; and
p.000063: (b) Article 7 of the Convention has been complied with,
p.000063: or if the Scottish Central Authority, having received a request under Article 8 of the Convention from an
p.000063: authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as
p.000063: would, under this Act, have functions in relation to the adult, have agreed to the request.
p.000063:
p.000063: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000065: 65
p.000065: Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (3) As from the ratification date, the provisions of the Convention shall apply to the exercise of
p.000065: jurisdiction under this schedule where the adult—
p.000065: (a) is habitually resident in a Contracting State other than the United Kingdom; or
p.000065: (b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a
p.000065: Contracting State.
p.000065: (4) As from the ratification date, any application made to a Scottish judicial or
p.000065: administrative authority under this Act which—
p.000065: (a) relates to an adult who is not habitually resident in Scotland; and
p.000065: (b) does not require to be determined as a matter of urgency,
p.000065: shall be accompanied by information as to which State the adult habitually resides in and as to any other
p.000065: application relating to the adult which has been dealt with or is being made, or proceedings so relating which
p.000065: have been or are being brought, in any Contracting State other than the United Kingdom.
p.000065: (5) For the purposes of this paragraph, an adult—
p.000065: (a) whose habitual residence cannot be ascertained; or
p.000065: (b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual
p.000065: residence,
p.000065: shall be taken to be habitually resident in the State which he is in.
p.000065: Appropriate sheriff
p.000065: 2 (1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose
...
p.000065: (b) in relation to a case falling within paragraph 1(1)(b), the property is located;
p.000065: (c) in relation to a case falling within paragraph 1(1)(c), the adult or property belonging to the adult
p.000065: is present;
p.000065: (d) in relation to a case falling within paragraph 1(1)(d), the adult is present.
p.000065: (2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship
p.000065: order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial
p.000065: or administrative authorities, jurisdiction; and—
p.000065: (a) no other court or authority has jurisdiction; or
p.000065: (b) another court or authority has jurisdiction but—
p.000065: (i) it would be unreasonable to expect an applicant to invoke it; or
p.000065: (ii) that court or authority has declined to exercise it.
p.000065: (3) Notwithstanding that any other judicial or administrative authority has jurisdiction under sub-paragraph (1)(a)
p.000065: to take measures, a sheriff shall have jurisdiction to take measures if—
p.000065: (a) the adult is present in the sheriffdom; and
p.000065: (b) the sheriff considers that it is necessary, in the interests of the adult, to take the measures immediately.
p.000065:
p.000065: 66 Adults with Incapacity (Scotland) Act 2000
p.000065: (asp 4) Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (4) Where, by operation of paragraph 1, jurisdiction falls to be exercised by a sheriff but the case is one
p.000065: appearing to fall outside sub-paragraphs (1) and (2), the sheriff having jurisdiction is the Sheriff of the
p.000065: Lothians and Borders at Edinburgh.
p.000065: Applicable law
p.000065: 3 (1) The law applicable to anything done under this Act by a Scottish judicial or
p.000065: administrative authority in relation to an adult is the law of Scotland.
p.000065: (2) Sub-paragraph (1) does not prevent a Scottish judicial or administrative authority from applying the law
p.000065: of a country other than Scotland if, in circumstances which demonstrate a substantial connection with
p.000065: that other country and having regard to the interests of the adult, it appears appropriate to do so.
p.000065: (3) Such an authority shall, however, in the exercise of the powers conferred by section 18 of this Act, take into
p.000065: consideration to the extent possible the law which, as provided in paragraph 4, governs the power of attorney.
p.000065: (4) Where a measure for the protection of an adult has been taken in one State and is implemented
p.000065: in another, the conditions of its implementation are governed by the law of that other State.
p.000065: (5) Any question whether a person has authority by virtue of any enactment or rule of law to represent an adult
p.000065: shall be governed—
...
p.000065: instead be the law of a State—
p.000065: (a) of which the granter is a national;
p.000065: (b) in which the granter was habitually resident before the grant; or
p.000065: (c) in which the property of the granter is located.
p.000065: (3) The manner of exercise of such a power shall be governed by the law of the State in which its exercise takes
p.000065: place.
p.000065: (4) The law of a State may be applied under sub-paragraph (2)(c) above only in respect of the property referred to
p.000065: in that provision.
p.000065: (5) Nothing in sub-paragraphs (1) and (2) prevents the sheriff from exercising powers under section 20 of this Act
p.000065: if a power of attorney is not being exercised so as to safeguard the welfare or property of the granter.
p.000065: (6) It is not an objection to the validity of any contract or other transaction between a person acting or
p.000065: purporting to act as the representative of an adult and any other person that the person so acting or purporting to act
p.000065: was not entitled so to act under the law of a country other than the country where the contract or other transaction
p.000065: was concluded.
p.000065: (7) Sub-paragraph (6) does not, however, apply where the other person knew or ought to have known that
p.000065: the entitlement so to act of the person acting or purporting to act as representative was governed by the law of
p.000065: that other country.
p.000065:
p.000065: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000067: 67
p.000067: Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (8) Sub-paragraph (6) applies only if the persons entering into the contract or other transaction were,
p.000067: when they did so, both (or all) in the same country.
p.000067: 5 Nothing in this schedule displaces any enactment or rule of law which has mandatory effect for the
p.000067: protection of an adult with incapacity in Scotland whatever law would otherwise be applicable.
p.000067: 6 Nothing in this schedule requires or enables the application in Scotland of any provision of the law of a
p.000067: country other than Scotland so as to produce a result which would be manifestly contrary to public policy.
p.000067: Recognition and enforcement
p.000067: 7 (1) Any measure taken under the law of a country other than Scotland for the personal welfare or
p.000067: the protection of property of an adult with incapacity shall, if one of the conditions specified in
p.000067: sub-paragraph (2) is met, be recognised by the law of Scotland.
p.000067: (2) These conditions are—
p.000067: (a) that the jurisdiction of the authority of the other country was based on the adult’s habitual residence there;
p.000067: (b) that the United Kingdom and the other country were, when the measure was taken, parties to the
p.000067: Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided
p.000067: for in the Convention.
p.000067: (3) Recognition of a measure may, however, be refused—
p.000067: (a) if, except in a case of urgency—
p.000067: (i) the authority which took it did so without the adult to whom it related being given an opportunity to be
p.000067: heard; and
p.000067: (ii) these circumstances constituted a breach of natural justice;
p.000067: (b) if it would be manifestly contrary to public policy to recognise the measure;
p.000067: (c) if the measure conflicts with any enactment or rule of law of Scotland which is mandatory whatever law would
p.000067: otherwise be applicable;
p.000067: (d) if the measure is incompatible with a later measure taken in Scotland or recognised by the law of
p.000067: Scotland;
p.000067: (e) if the measure would have the effect of placing the adult in an establishment in Scotland and—
p.000067: (i) the Scottish Central Authority has not previously been provided with a report on the adult and a
p.000067: statement of the reasons for the proposed placement and has not been consulted on the proposed placement; or
p.000067: (ii) where the Authority has been provided with such a report and statement and so consulted, it has, within a
p.000067: reasonable time thereafter, declared that it disapproves of the proposed placement.
p.000067: 8 (1) A measure which is enforceable in the country of origin and which is recognised under paragraph 7 by the
p.000067: law of Scotland may, in accordance with rules of court, be registered.
p.000067: (2) A measure so registered shall be as enforceable as a measure having the like effect granted by a
p.000067: court in Scotland.
p.000067: 9 (1) For the purposes of recognition or enforcement of a measure taken outside Scotland in relation to an adult,
p.000067: findings of fact going to jurisdiction made by the authority taking the measure are conclusive of the facts found.
p.000067:
p.000067: 68 Adults with Incapacity (Scotland) Act 2000
p.000067: (asp 4) Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (2) The validity or merits of a measure falling to be recognised by the law of Scotland by virtue of this
p.000067: schedule shall not be questioned in any proceedings except for the purposes of ascertaining its compliance
p.000067: with any provision of this schedule.
p.000067: 10 (1) The Scottish Ministers may, by order, provide for the recognition and enforcement of orders made and other
p.000067: measures taken by authorities in any part of the United Kingdom other than Scotland.
p.000067: (2) The provision so made shall accord no less recognition and secure that these orders and measures are no less
p.000067: enforceable than if they were measures which are recognised by the law of Scotland under paragraph 7.
p.000067: Co-operation, avoidance of conflict of jurisdiction and compliance with the Convention
p.000067: 11 (1) Her Majesty may by Order in Council confer on the Scottish Central Authority, and the Scottish judicial and
p.000067: administrative authorities such powers, and impose on them such duties additional, in each case, to those which they
p.000067: have under this Act, as are necessary or expedient to enable them to give effect in Scotland to the Convention on and
p.000067: after the ratification date.
p.000067: (2) An Order in Council under sub-paragraph (1) shall be subject to annulment in pursuance of a resolution of the
p.000067: Scottish Parliament.
p.000067: (3) A certificate delivered in pursuance of Article 38 of the Convention by a designated authority of a
p.000067: Contracting State other than Scotland shall be proof of the matters stated in it unless the contrary is proved.
p.000067: General
p.000067: 12 No provision of this schedule deriving from or giving effect to the Convention extends to any matter to
p.000067: which the Convention, by Article 4 thereof, does not apply.
p.000067: 13 Orders or regulations under this schedule shall be made by statutory instrument subject to annulment in
p.000067: pursuance of a resolution of the Scottish Parliament.
p.000067: 14 In this schedule—
p.000067: “the Convention” means the Hague Convention of 13 January 2000 on the International Protection of Adults;
p.000067: a “measure for the personal welfare or protection of the property” of an adult with incapacity includes any order,
p.000067: direction or decision effecting or relating to—
p.000067: (a) the determination of the incapacity and the institution of appropriate measures of protection;
p.000067: (b) the placing of the adult under the protection of a judicial or administrative authority;
p.000067: (c) guardianship, curatorship or analogous institutions;
p.000067: (d) the appointment and functions of any person or body having charge of the adult’s person or property or otherwise
p.000067: representing the adult;
p.000067: (e) the placement of the adult in an establishment or other place where the personal welfare of the
p.000067: adult is safeguarded;
p.000067: (f) the administration, conservation or disposal of the adult’s property; or
p.000067: (g) the authorisation of a specific intervention for the personal welfare or protection of the property of
p.000067: the adult;
p.000067:
p.000067: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000069: 69
p.000069: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: the “ratification date” means the date when the Convention is ratified as respects Scotland;
p.000069: the “Scottish Central Authority” means—
p.000069: (a) an authority designated under Article 28 of the Convention for the purposes of acting as such; or
p.000069: (b) if no authority has been so designated any authority appointed by the Scottish Ministers for the
p.000069: purposes of carrying out the functions to be carried out under this schedule by the Scottish Central Authority;
p.000069: the “Scottish judicial and administrative authorities” means the courts having functions under this Act
p.000069: and the Public Guardian, the Mental Welfare Commission, local authorities and supervisory bodies.
p.000069:
p.000069:
p.000069: SCHEDULE 4
p.000069: (introduced by section 88(1))
p.000069: CONTINUATION OF EXISTING CURATORS, TUTORS, GUARDIANS AND ATTORNEYS UNDER THIS ACT
p.000069: Curators and tutors
p.000069: 1 (1) On the relevant date, any person holding office as curator bonis to an adult shall become guardian of that
p.000069: adult with power to manage the property or financial affairs of the adult.
p.000069: (2) Where a person—
...
p.000069: or financial affairs.
p.000069: (3) Where any proceedings for the appointment of a curator bonis to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed curator bonis shall become guardian of that adult with
p.000069: power to manage the property or financial affairs of the adult.
p.000069: (4) On the relevant date, any person holding office as tutor-dative to an adult shall become guardian of that adult
p.000069: and shall continue to have the powers conferred by the court on his appointment as tutor-dative.
p.000069: (5) Where any proceedings for the appointment of a tutor-dative to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed tutor-dative shall become guardian of that adult with such
p.000069: power to manage the property, financial affairs or personal welfare of the adult as the court may
p.000069: determine.
p.000069: (6) On the relevant date, any person holding office as tutor-at-law to an adult shall become guardian of that adult
p.000069: with power to manage the property, financial affairs or personal welfare of the adult.
p.000069:
p.000069: 70 Adults with Incapacity (Scotland) Act 2000
p.000069: (asp 4) Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: (7) Where any proceedings for the appointment of a tutor-at-law to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed tutor-at-law shall become guardian of that adult
p.000069: with power to manage the property, financial affairs or personal welfare of the adult.
p.000069: Guardians
p.000069: 2 (1) On the relevant date, any person holding office as guardian of an adult under the 1984 Act shall become
p.000069: guardian of that adult under this Act and shall continue to have the powers set out in paragraphs (a) to (c) of section
p.000069: 41(2) of that Act notwithstanding the repeal of that section by this Act.
p.000069: (2) Where any proceedings for the appointment of such a guardian of an adult have been commenced and not
p.000069: determined before the relevant date, they shall be determined in accordance with the 1984 Act as it was in
p.000069: force immediately before that date; and any person appointed guardian shall become guardian of that adult under this
p.000069: Act with the powers set out in the said paragraphs (a) to (c) of section 41(2) of the 1984 Act.
p.000069: Proceedings relating to existing appointments
p.000069: 3 Where any proceedings in relation to the functions of an existing curator bonis, tutor- dative,
p.000069: tutor-at-law or guardian have been commenced and not determined before the relevant date, they shall be
...
p.000069: shall become a welfare attorney under this Act;
p.000069: (c) an attorney under a contract of mandate or agency with powers relating both to the property and financial affairs
p.000069: and to the personal welfare of an adult shall become a continuing attorney and a welfare attorney under this Act.
p.000069: (2) Where, under the provisions of a contract of mandate or agency executed before the relevant date,
p.000069: a person is appointed as an attorney after that date he shall be a continuing attorney, a welfare attorney or a
p.000069: continuing and welfare attorney, as provided for in sub- paragraph (1), under this Act.
p.000069: (3) For the purposes of their application to persons who have become continuing attorneys by virtue of
p.000069: sub-paragraph (1)(a) or (c), the following provisions shall have effect as modified or disapplied by
p.000069: sub-paragraph (3).
p.000069: (4) Sections 6(2)(c)(i), 15, 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069: (5) For the purposes of their application to persons who have become welfare attorneys by virtue of sub-paragraph
p.000069: (1)(b) or (c) the following provisions shall have effect as modified or disapplied by sub-paragraph (5).
p.000069: (6) Sections 16(1) to (4) and (7), 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069:
p.000069: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000071: 71
p.000071: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000071:
p.000071: Managers
p.000071: 5 (1) Any managers of a hospital who have received and hold money and valuables on behalf of any person under
p.000071: section 94 of the 1984 Act may continue to do so under this Act for a period not exceeding 3 years from the relevant
p.000071: date.
p.000071: (2) This Act applies to managers as mentioned in sub-paragraph (1) notwithstanding that no certificate has been
p.000071: issued under section 37 in respect of the owner of the money or valuables.
p.000071: (3) Sections 35 and 38 shall not apply in the case of managers who continue to hold money by virtue of
p.000071: sub-paragraph (1).
p.000071: (4) Where the managers have authority from the Mental Welfare Commission to hold and manage money and other
p.000071: property in excess of the aggregate value mentioned in section 39 they may do so in relation to the money and
p.000071: valuables of any person which they continue to hold under sub-paragraph (1).
p.000071: Application of Act to persons who become guardians by virtue of this schedule
p.000071: 6 (1) For the purposes of their application to persons who have become guardians by virtue of this schedule,
p.000071: the following provisions shall have effect as modified or disapplied by this paragraph.
p.000071: (2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed
p.000071: as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law
...
p.000071: renewed there shall be substituted a reference to the period of 5 years from the relevant date or (in the case of a
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
p.000071: they would have continued had he not become a guardian by virtue of this schedule to this Act.
p.000071: (5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall
p.000071: be construed as including references to the local authority.
p.000071: (6) Schedule 2 shall apply only—
p.000071: (a) in a case where; and
p.000071: (b) to the extent that,
p.000071: the Public Guardian has determined that it should apply.
p.000071: (7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make
p.000071: such a determination, may be appealed to the sheriff, whose decision shall be final.
p.000071: (8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by
p.000071: virtue of this schedule.
p.000071:
p.000071: 72 Adults with Incapacity (Scotland) Act 2000
p.000071: (asp 4) Schedule 5—Minor and consequential amendments
p.000071:
p.000071: Transitional Provisions
p.000071: 7 Until Part 6 comes into force—
p.000071: (a) the references in section 23(1)(c) to a guardian shall be omitted;
p.000071: (b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a
p.000071: reference to the appointment of a curator bonis or tutor- dative or tutor-at-law with powers relating to the
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
p.000071: (d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.
p.000071: Interpretation
p.000071: 8 In this schedule the “relevant date” in relation to any paragraph in which it appears means
p.000071: the date of coming into force of that paragraph.
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071:
p.000071: General
p.000071: SCHEDULE 5
p.000071: (introduced by section 88(2))
p.000071: MINOR AND CONSEQUENTIAL AMENDMENTS
p.000071: 1 With effect from the commencement of this paragraph any reference in any enactment or document to a
p.000071: curator bonis or a tutor or curator of a person of or over the age of 16 years shall be construed as a reference to a
p.000071: guardian with similar powers appointed to that person under this Act.
p.000071: Defence Act 1842 (c.94)
p.000071: 2 (1) In section 15 of the Defence Act 1842—
p.000071: (a) after “nonage” in both places there shall be inserted “or mental incapacity”;
p.000071: (b) “or not of whole mind” shall be repealed;
p.000071: (c) for “out of prison, within this land, or of whole mind” there shall be substituted “within this land”.
p.000071: (2) In section 27 of that Act for “lunacy” there shall be substituted “mental incapacity”.
p.000071: Judicial Factors Act 1849 (c.51)
p.000071: 3 In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward” there
p.000071: shall be substituted “coming to an end of the situation giving rise to it”.
p.000071: Improvement of Land Act 1864 (c.114)
p.000071: 4 (1) In section 24 of the Improvement of Land Act 1864—
p.000071: (a) “tutors,”, “curators,” “tutor,” and “curator,” shall be repealed;
p.000071:
p.000071: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000073: 73
p.000073: Schedule 5—Minor and consequential amendments
p.000073:
p.000073: (b) for “persons suffering from mental disorder within the meaning of the Mental Health (Scotland) Act,
p.000073: 1960” there shall be substituted “adults who are incapable within the meaning of the Adults with Incapacity (Scotland)
p.000073: Act 2000 (asp 4)”.
p.000073: (2) In section 68 of that Act for “Mental Health (Scotland) Act 1984” there shall be substituted
p.000073: “Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000073: Titles to Land (Consolidation) (Scotland) Act 1868 (c.101)
p.000073: 5 (1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder
p.000073: within the meaning of the Mental Health (Scotland) Act 1960” there shall be substituted “mental or other incapacity”.
p.000073: (2) In section 62 of that Act for “of insane mind” there shall be substituted “mental or other incapacity”.
p.000073: Judicial Factors (Scotland) Act 1889 (c.39)
p.000073: 6 (1) In section 2 of the Judicial Factors (Scotland) Act 1889 at the beginning there shall be inserted “Without
p.000073: prejudice to section 6(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (Accountant of Court to be Public
p.000073: Guardian)”.
p.000073: (2) In section 6 of that Act, in the proviso, after “apply to” there shall be inserted “guardians appointed under
p.000073: the Adults with Incapacity (Scotland) Act 2000 (asp 4), to”.
p.000073: Heritable Securities (Scotland) Act 1894 (c.44)
p.000073: 7 In section 13 of the Heritable Securities (Scotland) Act 1894—
p.000073: (a) after “(b) trustees” there shall be inserted—
p.000073: “(c) the person entitled to act as the legal representative of any such person”;
p.000073: (b) “tutors, curators,” shall be repealed.
p.000073: National Assistance Act 1948 (c.29)
p.000073: 8 In section 49 of the National Assistance Act 1948 as it applies to Scotland—
p.000073: (a) immediately before “the council” where last occurring there shall be inserted “or applies for an intervention
p.000073: order or for appointment as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4)”;
p.000073: (b) immediately before “in so far as” there shall be inserted “or his functions under the intervention order or as
p.000073: guardian”.
p.000073: Offices, Shops and Railway Premises Act 1963 (c.41)
p.000073: 9 In section 90(1) of the Offices, Shops and Railway Premises Act 1963 in the definition of “owner” for “,
p.000073: tutor or curator” there shall be substituted “or person entitled to act as legal representative of a person under
p.000073: disability by reason of nonage or mental or other incapacity”.
p.000073: Social Work (Scotland) Act 1968 (c.49)
p.000073: 10 In section 64A(1) of the Social Work (Scotland) Act 1968 “and” between paragraphs (c) and (d) shall be
p.000073: repealed and after paragraph (d) there shall be inserted “and
p.000073: (e) an application for registration of an establishment under section 61B of this Act”.
p.000073:
p.000073: 74 Adults with Incapacity (Scotland) Act 2000
p.000073: (asp 4) Schedule 5—Minor and consequential amendments
p.000073:
p.000073: 11 In section 68(1) of that Act after “persons” where second occurring there shall be inserted
p.000073: “or, where the establishment is one which has power to manage residents’ financial affairs, for the
p.000073: purpose of ensuring that such financial affairs are being properly managed,”.
p.000073: Medicines Act 1968 (c.67)
p.000073: 12 In section 72 of the Medicines Act 1968—
p.000073: (a) in subsection (1) for “curator bonis” there shall be substituted “guardian”;
p.000073: (b) in subsections (3)(d) and (4)(c) “curator bonis,” shall be repealed.
p.000073: Sheriff Courts (Scotland) Act 1971 (c.58)
p.000073: 13 In section 32(1) of the Sheriff Courts (Scotland) Act 1971 after paragraph (j) there shall be inserted—
p.000073: “(k) prescribing the procedure to be followed in appointing a person under section 3(4) of the Adults
p.000073: with Incapacity (Scotland) Act 2000 (asp 4) and the functions of such a person.”.
p.000073: Land Registration (Scotland) Act 1979 (c.33)
p.000073: 14 In section 12(3) of the Land Registration (Scotland) Act 1979 after paragraph (k) there shall be
p.000073: inserted—
p.000073: “(kk) the loss is suffered by an adult within the meaning of the Adults with Incapacity (Scotland) Act
p.000073: 2000 (asp 4) because of the operation of sections 24, 53, 67, 77 or 79 of that Act, or by any person who
p.000073: acquires any right, title or interest from that adult;”.
p.000073: Solicitors (Scotland) Act 1980 (c.46)
p.000073: 15 In section 18(1) of the Solicitors (Scotland) Act 1980—
p.000073: (a) in paragraph (a) “or becomes subject to guardianship” shall be repealed;
p.000073: (b) for paragraph (b) there shall be substituted—
p.000073: “(b) a guardian is appointed to a solicitor under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4);”.
p.000073: Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)
p.000073: 16 In group C of Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland)
p.000073: Act 1980 for paragraphs (b) and (c) there shall be substituted—
p.000073: “(b) persons for the time being subject to guardianship under the Adults with Incapacity (Scotland) Act 2000 (asp
p.000073: 4).”.
p.000073: Mental Health (Scotland) Act 1984 (c.36)
p.000073: 17 (1) In section 3 of the Mental Health (Scotland) Act 1984—
p.000073: (a) in subsection (1) “guardianship or” shall be repealed;
p.000073: (b) in subsection (2) in paragraph (b) “or who are subject to guardianship” shall be repealed.
p.000073: (2) In section 5(2) of that Act “and the guardian of any person subject to guardianship under this Act” shall be
p.000073: repealed.
p.000073: (3) In section 19 of that Act—
p.000073:
p.000073: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000075: 75
p.000075: Schedule 5—Minor and consequential amendments
p.000075:
p.000075: (a) in subsection (1) for “either by the nearest relative of the patient or by a mental health officer” there shall
p.000075: be substituted “by the nearest relative of the patient, by a mental health officer, or by a guardian or welfare
p.000075: attorney of the patient who has powers to do so”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be,”;
p.000075: (c) in subsection (3) after “relative” in both places there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be”;
p.000075: (d) in subsection (4) after “patient” where second occurring there shall be inserted “or by a guardian or welfare
p.000075: attorney of the patient”;
p.000075: (e) in subsection (5)(b) after “relative” there shall be inserted “and any guardian or welfare attorney”.
p.000075: (4) In section 20(1)(a) of that Act for “or his nearest relative” there shall be substituted “, his nearest
p.000075: relative, guardian or welfare attorney, as the case may be”.
p.000075: (5) In section 21(2)(b) of that Act—
p.000075: (a) after “relative” where first occuring there shall be inserted “, guardian or welfare attorney, as the case may
...
p.000075: (8) In section 26 of that Act—
p.000075: (a) in subsection (1)(b) after “patient” there shall be inserted “, by any guardian or welfare attorney of
p.000075: the patient who has power so to consent,”;
p.000075: (b) in subsection (4)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney “ and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (9) In section 26A of that Act—
p.000075: (a) in subsection (4) after “relative” there shall be inserted “or any guardian or welfare attorney who
p.000075: has powers to do so”;
p.000075: (b) in subsection (6)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney” and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (10) In section 29 of that Act—
p.000075: (a) in subsection (2) after “relative” there shall be inserted “, to any guardian or welfare attorney”;
p.000075:
p.000075: 76 Adults with Incapacity (Scotland) Act 2000
p.000075: (asp 4) Schedule 5—Minor and consequential amendments
p.000075:
p.000075: (b) in subsection (4) after “relative” there shall be inserted “, guardian or welfare attorney”.
p.000075: (11) In section 30(5) of that Act after “relative” there shall be inserted “and any guardian or welfare attorney of
p.000075: his”.
p.000075: (12) In section 31B(3) of that Act after “relative” there shall be inserted “, and any welfare attorney,”.
p.000075: (13) In section 33(5) of that Act for “or by the nearest relative” there shall be substituted “, by the nearest
p.000075: relative or by any guardian or welfare attorney who has powers to do so”.
p.000075: (14) In section 34 of that Act—
p.000075: (a) in subsection (1) after “relative” wherever occurring there shall be inserted “, or guardian or welfare attorney
p.000075: with powers to do so”;
p.000075: (b) in subsection (2) after “relative” where first occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be” and after “relative” where second occurring there shall be inserted “,
p.000075: guardian or welfare attorney”;
p.000075: (c) in subsection (3) after “relative” there shall be inserted “or by any guardian or welfare attorney”.
p.000075: (15) In section 35 of that Act—
...
p.000075: (b) in subsection (3) after “relative” there shall be inserted “or any guardian or welfare attorney”.
p.000075: (16) In section 35B of that Act—
p.000075: (a) in subsection (3)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (4) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (17) In section 35C of that Act—
p.000075: (a) in subsection (3)(b)(i) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (4) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (18) In section 35D of that Act—
p.000075: (a) in subsection (1)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000075: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “and any welfare attorney of the patient,”.
p.000075: (19) In section 35E of that Act—
p.000075:
p.000075: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000077: 77
p.000077: Schedule 5—Minor and consequential amendments
p.000077:
p.000077: (a) in subsection (3)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (4)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (c) in subsection (5) after “relative” there shall be inserted “ and any welfare attorney of the patient,”.
p.000077: (20) In section 35G of that Act—
p.000077: (a) in subsection (2)(a) at the beginning there shall be inserted “any guardian of the patient, and” and after
p.000077: “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (3) after “relative” there shall be inserted “ and any welfare attorney of the patient,”.
p.000077: (21) In section 35I of that Act—
p.000077: (a) in subsection (2)(a) after “patient” where first occurring there shall be inserted “or any guardian of the
p.000077: patient” and after “relative” there shall be inserted “and any welfare attorney of the patient”;
p.000077: (b) in subsection (3) after “relative” there shall be inserted “ and any welfare attorney of the patient,”;
p.000077: (c) in subsection (5)(a) at the beginning there shall be inserted “any guardian of the patient, and” and after
p.000077: “relative” there shall be inserted “and any welfare attorney of the patient”.
p.000077: (22) In section 55(3) of that Act for “apart from section 41(2) of this Act” there shall be
p.000077: substituted “but for the appointment of a guardian under the Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4)”.
p.000077: (23) In section 95 of that Act—
p.000077: (a) in subsection (1) after “tutor” there shall be inserted “, guardian”;
p.000077: (b) in subsection (2) after “tutor” there shall be inserted “, guardian”.
p.000077: (24) In section 125(1) of that Act—
p.000077: (a) for the definition of “application for admission” and “guardianship application” there shall be
p.000077: substituted—
p.000077: ““application for admission” has the meaning assigned to it by section 18 of this Act”;
p.000077: (b) in the appropriate place, there shall be inserted—
p.000077: ““guardian” includes a guardian (however called) appointed under the law of any country to, or entitled under
p.000077: the law of any country to act for an adult during his incapacity, if the guardianship is recognised by the law of
p.000077: Scotland;”;
p.000077: ““welfare attorney” includes a person granted, under a contract, grant or appointment governed by the law of any
p.000077: country, powers (however expressed) relating to the granter’s personal welfare and having effect during the
p.000077: granter’s incapacity;”.
p.000077:
p.000077: 78 Adults with Incapacity (Scotland) Act 2000
p.000077: (asp 4) Schedule 5—Minor and consequential amendments
p.000077:
p.000077: Insolvency Act 1986 (c.45)
p.000077: 18 In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian
p.000077: appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Legal Aid (Scotland) Act 1986 (c.47)
p.000077: 19 In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—
p.000077: “(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult
p.000077: under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Financial Services Act 1986 (c.60)
p.000077: 20 In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in
p.000077: the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);”.
p.000077: Access to Health Records Act 1990 (c.23)
p.000077: 21 In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e)
p.000077: there shall be inserted—
p.000077: “(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with
p.000077: Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act
p.000077: on behalf of the patient under that Act.”.
p.000077: Child Support Act 1991 (c.48)
p.000077: 22 In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Social Security Administration Act 1992 (c.5)
p.000077: 23 In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and
p.000077: (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults
p.000077: with Incapacity (Scotland) Act 2000 (asp 4).”.
p.000077: Health Service Commissioners Act 1993 (c.46)
p.000077: 24 In section 7A of the Health Service Commissioners Act 1993 after “patients)” there shall be
p.000077: inserted “or”, “or 50 (orders discharging patients from guardianship)” shall be repealed, and at the end there
p.000077: shall be inserted “or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)”.
p.000077: Clean Air Act 1993 (c.11)
p.000077: 25 In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner” for “tutor or
p.000077: curator” there shall be substituted “or person entitled to act as the legal representative of a person
p.000077: under disability by reason of nonage or mental or other incapacity”.
p.000077: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000077: 26 (1) In section 57 of the Criminal Procedure (Scotland) Act 1995—
p.000077:
p.000077: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000079: 79
p.000079: Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) in subsection (2)(c) for first “person” there shall be substituted “person’s personal welfare”;
p.000079: (b) in subsection (4) after “58(1),” there shall be inserted “58(1A),”;
p.000079: (c) at the end there shall be added—
p.000079: “(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this
p.000079: section.”.
p.000079: (2) In section 58 of that Act—
p.000079: (a) for subsection (1) there shall be substituted—
p.000079: “(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an
p.000079: offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court—
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
p.000079: character and antecedents of the offender and to the other available methods of dealing with him, that the
p.000079: most suitable method of disposing of the case is by means of an order under this subsection,
p.000079: the court may, subject to subsection (2) below, by order authorise his admission to and detention
p.000079: in such hospital as may be specified in the order.
p.000079: (1A) Where a person is convicted as mentioned in subsection (1) above and the court is satisfied—
p.000079: (a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements
p.000079: imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in
p.000079: section 58(1)(a) of that Act apply in relation to the offender;
p.000079: (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his
p.000079: personal welfare to be safeguarded or promoted,
p.000079: the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the
p.000079: guardianship of such local authority or of such other person approved by a local authority as may be specified in the
p.000079: order.”;
p.000079: (b) in subsections (2), (3) and (10) for “subsection (1)” there shall be substituted “subsection (1) or
p.000079: (1A)”;
p.000079: (c) in subsections (5) and (7) after “subsection (1)” there shall be inserted “or paragraph (a) of
p.000079: subsection (1A),”;
p.000079: (d) for subsection (6) there shall be substituted—
p.000079: “(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act
p.000079: referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
p.000079:
p.000079: 80 Adults with Incapacity (Scotland) Act 2000
p.000079: (asp 4) Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) on the report of a mental health officer (complying with any requirements imposed by
p.000079: section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the
p.000079: general appropriateness of the order sought, based on an interview and assessment of the person
p.000079: carried out not more than 30 days before it makes the order, that it is necessary in the interests of
p.000079: the personal welfare of the person that he should be placed under guardianship;
p.000079: (b) that any person nominated to be appointed a guardian is suitable to be so appointed;
p.000079: (c) that the authority or person is willing to receive that person into guardianship; and
p.000079: (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland)
p.000079: Act 2000 (asp 4), in force relating to the person.”;
p.000079: (e) at the end there shall be added—
p.000079: “(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this
p.000079: section.”.
p.000079: (3) After section 60 of that Act there shall be inserted—
p.000079: “60A Intervention orders
p.000079: The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section
p.000079: 57(2)(c) or 58(1A) of this Act, make an intervention order where it considers that it would be appropriate to do so.”.
p.000079: (4) In section 61 of that Act—
p.000079: (a) in subsection (1), for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”;
p.000079: (b) in subsection (2), after “section 58(1)(a)” there shall be inserted “or 58(1A)(a)”; and
p.000079: (c) in subsection (3) for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”.
p.000079:
p.000079: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000081: 81
p.000081: Schedule 6—Repeals
p.000081:
p.000081: SCHEDULE 6
p.000081: (introduced by section 88(3))
p.000081: REPEALS
p.000081:
p.000081: Enactment Extent of Repeal
p.000081:
p.000081:
p.000081: Curators Act 1585 (c.25(S)) The whole Act.
p.000081:
p.000081:
p.000081: Judicial Factors Act 1849 (12 & 13 Vict. c.51)
p.000081: In section 1, “and curator bonis” and the words from “the word “tutor”” to “Act 1960” where second occurring.
p.000081:
p.000081: In section 7, the words from “and if any factor” to “not subject to appeal”.
p.000081:
p.000081: In section 10, “tutors and curators”. Section 25(1).
p.000081: Section 26.
p.000081:
p.000081: In section 27, “or Court of Exchequer, as the case may be,” and “tutors and curators”.
p.000081:
p.000081: Section 28.
p.000081:
p.000081: In section 31, “tutor or curator” and “or curator bonis”. In section 32, “tutor or curator”.
p.000081: In section 33, “tutor or curator”. In section 34, “tutor, or curator”.
p.000081: In section 34A, “tutors and curators” and “tutory or curatory”.
p.000081:
p.000081: In section 36, “tutories, and curatories”. In section 37, “tutor, or curator”.
p.000081: In section 40, the words from “and the manner of applying” to “curators” where first occurring and
p.000081: “tutors, and curators,”.
p.000081:
p.000081:
p.000081: Improvement of Land Act 1864 (27 & 28 Vict. c.114)
p.000081:
p.000081: Titles to Land (Consolidation) (Scotland) Act 1868 (31 & 32 Vict.
p.000081: In section 24, “tutors,”, “curators,”, “tutor,” and “curator,”.
p.000081:
p.000081: In section 3 in the definition of “judicial factor”, “or curators bonis”.
p.000081:
p.000081: 82 Adults with Incapacity (Scotland) Act 2000
p.000081: (asp 4) Schedule 6—Repeals
p.000081:
p.000081: Enactment Extent of Repeal
p.000081:
p.000081:
p.000081: c.101)
p.000081: Judicial Factors (Scotland) Act 1880 (43 & 44 Vict. c.4)
p.000081:
p.000081: In section 3, “a curator bonis”.
p.000081:
p.000081:
p.000081: Judicial Factors (Scotland) Act 1889 (52 & 53 Vict. c.39)
p.000081: In section 13, “tutor, curator” in both places.
p.000081:
p.000081:
p.000081: Heritable Securities (Scotland) Act 1894 (57 & 58 Vict. c.44)
p.000081: In section 13, “tutors, curators”.
p.000081:
p.000081:
p.000081: Trusts (Scotland) Act 1921 (11 & 12 Geo.5 c.58)
p.000081: In section 2 in each of the definitions of “trust” and “trust deed” the words “tutor, curator, guardian or”
p.000081: and in the definition of “trustee” the words “tutor, curator, guardian”; in the definition of “judicial
p.000081: factor” the words “or curator”; the definitions of “curator”, “tutor” and “guardian”.
p.000081:
p.000081:
p.000081: U.S.A. Veterans’ Pensions Act 1949 (12 & 13 Geo.6 c.45)
p.000081: In section 1(4), “tutor, factor loco tutoris,” and “curator bonis or”.
p.000081:
p.000081: Medicines Act 1968 (c.67) In section 72(3)(d) and (4)(c), “curator bonis,”.
p.000081:
p.000081: Solicitors (Scotland) Act 1980 (c.46) In section 18(1)(a), “or becomes subject to guardianship”.
p.000081:
p.000081:
p.000081: Mental Health Act 1983 (c.20)
p.000081: In section 110, in subsection (1) “curator bonis, tutor or”; in subsection (2) “curator bonis, tutor, or”.
p.000081:
p.000081:
p.000081: Mental Health (Scotland) Act 1984 (c.36)
p.000081: In section 3 in subsection (1) “guardianship or”; in subsection (2)(b), “or who are subject to
p.000081: guardianship”.
p.000081:
p.000081: In section 5(2) “or subject to guardianship under the following provisions of this Act”.
p.000081:
p.000081: In section 7(1)(b), “under the following provisions of this Act”.
p.000081:
p.000081: In section 10(1)(b) “the following provisions of this Act or under”.
p.000081:
p.000081: In section 29 in subsection (1), paragraphs (b) and (c) and “or” which precedes them; in subsection (2), “or, as the
p.000081: case may be, by the local authority concerned”; in subsection (3), paragraph (b).
p.000081:
p.000081: Sections 36 to 52.
p.000081:
p.000081: In section 53(3), “or his reception into guardianship”. Section 55(3).
p.000081:
p.000081: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000083: 83
p.000083: Schedule 6—Repeals
p.000083:
p.000083: Enactment Extent of Repeal
p.000083:
p.000083: In section 57(4), “or subject to guardianship” and “or so subject” wherever occurring.
p.000083:
p.000083: In section 59, subsections (1)(b) and (2) and in subsection (3), “or 44”.
p.000083:
p.000083: Section 61.
p.000083:
p.000083: In section 76(1) paragraph (b) and “, a guardianship order”.
p.000083:
p.000083: In section 77, in subsection (1) “or subject to guardianship” and “or, as the case may be, for
p.000083: receiving him into guardianship”; subsection (3).
p.000083:
p.000083: In section 78, in subsection (1), “or reception into guardianship”; in subsection (2), “or his reception
p.000083: into guardianship”.
p.000083:
p.000083: In section 80(1), “or subject to guardianship” and “or, as the case may be, for receiving him into guardianship”.
p.000083:
p.000083: Section 84(4).
p.000083:
p.000083: In section 87(1), “or subject to guardianship” and “or placed under guardianship.”
p.000083:
p.000083: In section 92, subsection (1) and in subsection (2)(a), “or subject to guardianship thereunder”.
p.000083:
p.000083: Sections 93 and 94.
p.000083:
p.000083: In section 105(2), “subject to his guardianship under this Act or otherwise”.
p.000083:
p.000083: In section 107(1)(b), “subject to his guardianship under this Act or is otherwise”.
p.000083:
p.000083: In section 108(1)(a), “or being subject to guardianship”.
p.000083:
p.000083: In section 110 in subsection (1), “, or in the case of a patient subject to guardianship, the
p.000083: local authority concerned”, “or subject to guardianship”, “or guardianship” in both places,
p.000083: “or his reception into guardianship”; in subsection (4), “or, as the case may be, the local authority
p.000083: concerned in relation to a patient subject to guardianship as aforesaid”.
p.000083:
p.000083: In section 112, “or his reception into guardianship”.
p.000083:
p.000083: 84 Adults with Incapacity (Scotland) Act 2000
p.000083: (asp 4) Schedule 6—Repeals
p.000083:
p.000083: Enactment Extent of Repeal
p.000083:
p.000083: In section 113(1), “or for reception into guardianship”. In section 119, “guardianship under this Act”.
p.000083: In section 121 in subsection (1)(b), “or subject to guardianship”, “or 44”; in subsection (2),
p.000083: “or subject to guardianship”, “or 44”, “and subsection (2) of the said section 44”; in subsection (6),
p.000083: the words from “(in the case of” where first occurring to “guardianship)”, “or section 44”, “respectively”,
p.000083: “or the said section 44 (as the case may be)”.
p.000083:
p.000083: In section 125 in subsection (4), “or subject to guardianship”; in subsection (5), “or received, or
p.000083: liable to be received, into guardianship”, “(other than under Part V thereof)”, “or received or liable to be
p.000083: received into guardianship”.
p.000083:
p.000083:
p.000083: Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40)
p.000083:
p.000083: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000083: Section 71.
p.000083:
p.000083: In section 59(2), “or section 39”.
p.000083:
p.000083: In section 61(1), “or section 39”.
p.000083:
p.000083: In section 230(1), “or 39”.
p.000083:
...
General/Other / Other Country
Searching for indicator other country:
(return to top)
p.000057: accordance with section 16; “withdrawer” shall be construed in accordance with section 26;
p.000057: “the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).
p.000057: (2) Where—
p.000057: (a) an adult has no spouse or has a spouse but subsection (3) applies; and
p.000057: (b) a person of the same sex as the adult—
p.000057:
p.000057: 58 Adults with Incapacity (Scotland) Act 2000
p.000057: (asp 4) Part 7—Miscellaneous
p.000057:
p.000057: (i) is and has been, for a period of not less than 6 months, living with the adult in a relationship which has the
p.000057: characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife; or
p.000057: (ii) if the adult is for the time being an in-patient in a hospital, had so lived with the adult until
p.000057: the adult was admitted;
p.000057: then that person shall be treated as the nearest relative.
p.000057: (3) This subsection applies where the adult’s spouse is permanently separated from the adult, either by
p.000057: agreement or under an order of a court, or has deserted, or been deserted by, the adult for a period and the desertion
p.000057: persists.
p.000057: (4) For the purposes of this Act, a person is bankrupt if his estate has been sequestrated for insolvency or he has
p.000057: granted a trust deed which has become a protected trust deed under Schedule 5 to the Bankruptcy (Scotland) Act
p.000057: 1985 (c.66), or he has been adjudged bankrupt in England and Wales, or he has become bankrupt (however expressed)
p.000057: under the law of any other country.
p.000057:
p.000057: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000057: (1) Schedule 4, which contains provisions relating to the continuation of existing powers, shall have effect.
p.000057: (2) Schedule 5, which contains minor amendments and amendments consequential on the provisions of this Act,
p.000057: shall have effect.
p.000057: (3) The enactments mentioned in schedule 6 are hereby repealed to the extent specified in the second column of that
p.000057: schedule.
p.000057:
p.000057: 89 Citation and commencement
p.000057: (1) This Act may be cited as the Adults with Incapacity (Scotland) Act 2000.
p.000057: (2) This Act shall come into force on such day as the Scottish Ministers may by order made by statutory
p.000057: instrument appoint and different days may be appointed for different purposes.
p.000057: (3) Without prejudice to the provisions of schedule 4, an order under subsection (2) may make such
p.000057: transitional provisions and savings as appear to the Scottish Ministers necessary or expedient in connection
p.000057: with any provision brought into force by the order; and where it does so, the statutory instrument under which it is
p.000057: made shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000057:
p.000057: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000059: 59
p.000059: Schedule 1—Managers of an establishment
p.000059:
p.000059: SCHEDULE 1
p.000059: (introduced by section 35)
p.000059: MANAGERS OF AN ESTABLISHMENT
...
p.000065: resided at the time of the grant of these powers.
p.000065: (2) Where, however, the granter of such a power of attorney so provides in writing, the law so applicable shall
p.000065: instead be the law of a State—
p.000065: (a) of which the granter is a national;
p.000065: (b) in which the granter was habitually resident before the grant; or
p.000065: (c) in which the property of the granter is located.
p.000065: (3) The manner of exercise of such a power shall be governed by the law of the State in which its exercise takes
p.000065: place.
p.000065: (4) The law of a State may be applied under sub-paragraph (2)(c) above only in respect of the property referred to
p.000065: in that provision.
p.000065: (5) Nothing in sub-paragraphs (1) and (2) prevents the sheriff from exercising powers under section 20 of this Act
p.000065: if a power of attorney is not being exercised so as to safeguard the welfare or property of the granter.
p.000065: (6) It is not an objection to the validity of any contract or other transaction between a person acting or
p.000065: purporting to act as the representative of an adult and any other person that the person so acting or purporting to act
p.000065: was not entitled so to act under the law of a country other than the country where the contract or other transaction
p.000065: was concluded.
p.000065: (7) Sub-paragraph (6) does not, however, apply where the other person knew or ought to have known that
p.000065: the entitlement so to act of the person acting or purporting to act as representative was governed by the law of
p.000065: that other country.
p.000065:
p.000065: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000067: 67
p.000067: Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (8) Sub-paragraph (6) applies only if the persons entering into the contract or other transaction were,
p.000067: when they did so, both (or all) in the same country.
p.000067: 5 Nothing in this schedule displaces any enactment or rule of law which has mandatory effect for the
p.000067: protection of an adult with incapacity in Scotland whatever law would otherwise be applicable.
p.000067: 6 Nothing in this schedule requires or enables the application in Scotland of any provision of the law of a
p.000067: country other than Scotland so as to produce a result which would be manifestly contrary to public policy.
p.000067: Recognition and enforcement
p.000067: 7 (1) Any measure taken under the law of a country other than Scotland for the personal welfare or
p.000067: the protection of property of an adult with incapacity shall, if one of the conditions specified in
p.000067: sub-paragraph (2) is met, be recognised by the law of Scotland.
p.000067: (2) These conditions are—
p.000067: (a) that the jurisdiction of the authority of the other country was based on the adult’s habitual residence there;
p.000067: (b) that the United Kingdom and the other country were, when the measure was taken, parties to the
p.000067: Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided
p.000067: for in the Convention.
p.000067: (3) Recognition of a measure may, however, be refused—
p.000067: (a) if, except in a case of urgency—
p.000067: (i) the authority which took it did so without the adult to whom it related being given an opportunity to be
p.000067: heard; and
p.000067: (ii) these circumstances constituted a breach of natural justice;
p.000067: (b) if it would be manifestly contrary to public policy to recognise the measure;
p.000067: (c) if the measure conflicts with any enactment or rule of law of Scotland which is mandatory whatever law would
p.000067: otherwise be applicable;
p.000067: (d) if the measure is incompatible with a later measure taken in Scotland or recognised by the law of
p.000067: Scotland;
p.000067: (e) if the measure would have the effect of placing the adult in an establishment in Scotland and—
p.000067: (i) the Scottish Central Authority has not previously been provided with a report on the adult and a
p.000067: statement of the reasons for the proposed placement and has not been consulted on the proposed placement; or
p.000067: (ii) where the Authority has been provided with such a report and statement and so consulted, it has, within a
p.000067: reasonable time thereafter, declared that it disapproves of the proposed placement.
p.000067: 8 (1) A measure which is enforceable in the country of origin and which is recognised under paragraph 7 by the
p.000067: law of Scotland may, in accordance with rules of court, be registered.
...
General/Other / Relationship to Authority
Searching for indicator authority:
(return to top)
p.000001:
p.000001: Local authorities
p.000001: 10 Functions of local authorities
p.000001:
p.000001: Intimation
p.000001: 11 Intimation not required in certain circumstances
p.000001:
p.000001: Investigations
p.000001: 12 Investigations
p.000001:
p.000001: ii Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001: Codes of practice
p.000001: 13 Codes of practice
p.000001:
p.000001: Appeal against decision as to incapacity
p.000001: 14 Appeal against decision as to incapacity
p.000001:
p.000001: PART 2
p.000001: CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY
p.000001: 15 Creation of continuing power of attorney
p.000001: 16 Creation and exercise of welfare power of attorney
p.000001: 17 Attorney not obliged to act in certain circumstances
p.000001: 18 Power of attorney not granted in accordance with this Act
p.000001: 19 Registration of continuing or welfare power of attorney
p.000001: 20 Powers of sheriff
p.000001: 21 Records: attorneys
p.000001: 22 Notification to Public Guardian
p.000001: 23 Resignation of continuing or welfare attorney
p.000001: 24 Termination of continuing or welfare power of attorney
p.000001:
p.000001: PART 3
p.000001: ACCOUNTS AND FUNDS
p.000001: 25 Authority to intromit with funds
p.000001: 26 Application for authority to intromit
p.000001: 27 Notification of change of address
p.000001: 28 Purposes of intromissions with funds
p.000001: 29 Withdrawal and use of funds
p.000001: 30 Records and inquiries
p.000001: 31 Duration and termination of registration
p.000001: 32 Joint accounts
p.000001: 33 Transfer of funds
p.000001: 34 Disapplication of Part 3
p.000001:
p.000001:
p.000001:
p.000001:
p.000001:
p.000001: 35 Application of Part 4
p.000001: PART 4
p.000001: MANAGEMENT OF RESIDENTS’ FINANCES
p.000001: 36 Registration for purposes of managing residents’ finances
p.000001: 37 Residents whose affairs may be managed
p.000001: 38 Financial procedures and controls in registered establishments
p.000001: 39 Matters which may be managed
p.000001: 40 Supervisory bodies
p.000001: 41 Duties and functions of managers of authorised establishment
p.000001: 42 Authorisation of named manager to withdraw from resident’s account
p.000001: 43 Statement of resident’s affairs
p.000001: 44 Resident ceasing to be resident of authorised establishment
p.000001: 45 Appeal, revocation etc.
p.000001: 46 Disapplication of Part 4
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: iii
p.000001:
p.000001: PART 5
p.000001: MEDICAL TREATMENT AND RESEARCH
p.000001: 47 Authority of persons responsible for medical treatment
p.000001: 48 Exceptions to authority to treat
p.000001: 49 Medical treatment where there is an application for intervention or guardianship order
p.000001: 50 Medical treatment where guardian etc. has been appointed
p.000001: 51 Authority for research
p.000001: 52 Appeal against decision as to medical treatment
p.000001:
p.000001: PART 6
p.000001: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000001: Intervention orders
p.000001: 53 Intervention orders
p.000001: 54 Records: intervention orders
p.000001: 55 Notification of change of address
p.000001: 56 Registration of intervention order relating to heritable property
p.000001:
p.000001: Guardianship orders
p.000001: 57 Application for guardianship order
p.000001: 58 Disposal of application
p.000001: 59 Who may be appointed as guardian
p.000001: 60 Renewal of guardianship order by sheriff
p.000001: 61 Registration of guardianship order relating to heritable property
p.000001:
p.000001: Joint and substitute guardians
p.000001: 62 Joint guardians
p.000001: 63 Substitute guardian
p.000001:
p.000001: Functions etc. of guardian
p.000001: 64 Functions and duties of guardian
p.000001: 65 Records: guardians
p.000001: 66 Gifts
p.000001: 67 Effect of appointment and transactions of guardian
p.000001: 68 Reimbursement and remuneration of guardian
p.000001: 69 Forfeiture of guardian’s remuneration
p.000001: 70 Non-compliance with decisions of guardian with welfare powers
p.000001:
p.000001: Termination and variation of guardianship and replacement, removal or resignation of guardian
p.000001: 71 Replacement or removal of guardian or recall of guardianship by sheriff
p.000001: 72 Discharge of guardian with financial powers
p.000001: 73 Recall of powers of guardian
p.000001: 74 Variation of guardianship order
p.000001: 75 Resignation of guardian
p.000001: 76 Change of habitual residence
p.000001:
p.000001: Termination of authority to intervene and guardianship on death of adult
p.000001: 77 Termination of authority to intervene and guardianship on death of adult
p.000001: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000001:
p.000001: iv Adults with Incapacity (Scotland) Act 2000
p.000001: (asp 4)
p.000001:
p.000001:
p.000001: 79 Protection of third parties: guardianship
p.000001:
p.000001: PART 7
p.000001: MISCELLANEOUS
p.000001: 80 Future appointment of curator bonis etc. incompetent
p.000001: 81 Repayment of funds
p.000001: 82 Limitation of liability
p.000001: 83 Offence of ill-treatment and wilful neglect
p.000001: 84 Application to guardians appointed under Criminal Procedure (Scotland) Act 1995
p.000001: 85 Jurisdiction and private international law
p.000001: 86 Regulations
p.000001: 87 Interpretation
p.000001: 88 Continuation of existing powers, minor and consequential amendments and repeals
p.000001: 89 Citation and commencement
p.000001:
p.000001:
p.000001:
p.000001: Schedule 1 —Managers of an establishment Schedule 2 —Management of estate of adult
p.000001: Schedule 3 —Jurisdiction and private international law
p.000001: Schedule 4 —Continuation of existing curators, tutors, guardians and attorneys under this Act Schedule 5 —Minor and
p.000001: consequential amendments
p.000001: Schedule 6 —Repeals
p.000001:
p.000001: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000001: 1
p.000001: Part 1—General
p.000001:
...
p.000005: (ii) all documents relating to welfare powers of attorney governed by the law of Scotland;
p.000005: (iii) all authorisations to intromit with funds under Part 3;
p.000005: (iv) all documents relating to guardianship orders under Part 6;
p.000005: (v) all documents relating to intervention orders under Part 6,
p.000005: in which he shall enter any matter which he is required to enter under this Act and any other matter of which he
p.000005: becomes aware relating to the existence or scope of the power, authorisation or order as the case may be;
p.000005: (c) to receive and investigate any complaints regarding the exercise of functions relating to the property
p.000005: or financial affairs of an adult made—
p.000005: (i) in relation to continuing attorneys;
p.000005: (ii) concerning intromissions with funds under Part 3;
p.000005: (iii) in relation to guardians or persons authorised under intervention orders;
p.000005: (d) to investigate any circumstances made known to him in which the property or financial affairs of an
p.000005: adult seem to him to be at risk;
p.000005: (e) to provide, when requested to do so, a guardian, a continuing attorney, a withdrawer or a person
p.000005: authorised under an intervention order with information and advice about the performance of functions
p.000005: relating to property or financial affairs under this Act;
p.000005: (f) to consult the Mental Welfare Commission and any local authority on cases or matters relating to the
p.000005: exercise of functions under this Act in which there is, or appears to be, a common interest.
p.000005: (3) In subsection (2)(c) any reference to—
p.000005:
p.000005: 6 Adults with Incapacity (Scotland) Act 2000
p.000005: (asp 4) Part 1—General
p.000005:
p.000005: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000005: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000005: guardianship is recognised by the law of Scotland;
p.000005: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000005: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000005: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000005:
p.000005: 7 The Public Guardian: further provision
p.000005: (1) The Scottish Ministers may prescribe—
p.000005: (a) the form and content of the registers to be established and maintained under section 6(2)(b) and the
p.000005: manner and medium in which they are to be established and maintained;
p.000005: (b) the form and content of any certificate which the Public Guardian is empowered to issue under this Act;
p.000005: (c) the forms and procedure for the purposes of any application required or permitted to be made under this Act to
p.000005: the Public Guardian in relation to any matter;
p.000005: (d) the evidence which the Public Guardian shall take into account when deciding under section 11(2)
p.000005: whether to dispense with intimation or notification to the adult.
p.000005: (2) The Public Guardian may charge the prescribed fee for anything done by him in connection with any
p.000005: of his functions under this Act and he shall not be obliged to act until such fee is paid.
p.000005: (3) Any certificate which the Public Guardian issues under this Act shall, for the purposes of any proceedings, be
p.000005: conclusive evidence of the matters contained in it.
p.000005:
p.000005: Expenses in court proceedings
p.000005: 8 Expenses in court proceedings
p.000005: (1) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of protecting the interests of an adult, the court may make an award of expenses against the adult or against
p.000005: any person whose actings have resulted in the proceedings.
p.000005: (2) Where in any court proceedings (other than, in the case of a local authority, an application
p.000005: under section 68(3)) the Public Guardian, Mental Welfare Commission or local authority is a party for the
p.000005: purpose of representing the public interest, the court may make an award of expenses against any person whose
p.000005: actings have resulted in the proceedings or on whose part there has been unreasonable conduct in relation
p.000005: to the proceedings.
p.000005:
p.000005: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000007: 7
p.000007: Part 1—General
p.000007:
p.000007: The Mental Welfare Commission
p.000007: 9 Functions of the Mental Welfare Commission
p.000007: (1) Without prejudice to their functions under the 1984 Act, the Mental Welfare Commission
p.000007: shall have the following general functions under this Act in relation to any adult to whom this Act applies by
p.000007: reason of, or by reasons which include, mental disorder—
p.000007: (a) to exercise protective functions in respect of the adult if the adult is the subject of an intervention or
p.000007: guardianship order, in so far as the order relates to the personal welfare of the adult;
p.000007: (b) to visit the adult as often as they think appropriate and bring to the attention of the Health Board for the area
p.000007: in which the adult resides, or the local authority, or any other body any matter relating to the personal
p.000007: welfare of the adult which they consider ought to be brought to their attention;
p.000007: (c) to consult the Public Guardian and any local authority on cases or matters relating to the exercise of functions
p.000007: under this Act in which there is, or appears to be, a common interest;
p.000007: (d) where they are not satisfied with any investigation made by a local authority into a complaint made under section
p.000007: 10(1)(c), or where the local authority have failed to investigate the complaint, to receive and investigate any
p.000007: complaints relating to the exercise of functions relating to the personal welfare of the adult made—
p.000007: (i) in relation to welfare attorneys;
p.000007: (ii) in relation to guardians or persons authorised under intervention orders;
p.000007: (e) to investigate any circumstances made known to them in which the personal welfare of the adult seems
p.000007: to them to be at risk;
p.000007: (f) to investigate any circumstances made known to them in which the property of the adult may, by reason of the
p.000007: mental disorder of the adult, be exposed to a risk of loss or damage;
p.000007: (g) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do
p.000007: so, with information and advice in connection with the performance of his functions in relation to personal welfare
p.000007: under this Act.
p.000007: (2) A guardian or welfare attorney of such an adult or a person authorised under an intervention
p.000007: order in relation to such an adult or the local authority shall afford the Mental Welfare Commission
p.000007: all facilities necessary to enable them to carry out their functions in respect of the adult.
p.000007: (3) In subsection (1)(d) any reference to—
p.000007: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000007: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000007: guardianship is recognised by the law of Scotland;
p.000007: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000007: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000007: having effect during the granter’s incapacity.
p.000007:
p.000007: 8 Adults with Incapacity (Scotland) Act 2000
p.000007: (asp 4) Part 1—General
p.000007:
p.000007: Local authorities
p.000007: 10 Functions of local authorities
p.000007: (1) A local authority shall have the following general functions under this Act—
p.000007: (a) to supervise a guardian appointed with functions relating to the personal welfare of an adult in the exercise of
p.000007: those functions;
p.000007: (b) to consult the Public Guardian and the Mental Welfare Commission on cases or matters relating to the exercise of
p.000007: functions under this Act in which there is, or appears to be, a common interest;
p.000007: (c) to receive and investigate any complaints relating to the exercise of functions relating to the
p.000007: personal welfare of an adult made—
p.000007: (i) in relation to welfare attorneys;
p.000007: (ii) in relation to guardians or persons authorised under intervention orders;
p.000007: (d) to investigate any circumstances made known to them in which the personal welfare of an adult seems to
p.000007: them to be at risk;
p.000007: (e) to provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do
p.000007: so, with information and advice in connection with the performance of his functions in relation to personal welfare
p.000007: under this Act.
p.000007: (2) For the purposes of subsection (1)(d), “local authority” includes a local authority for an area in which the
p.000007: adult is present.
p.000007: (3) The Scottish Ministers may make provision by regulations as regards the supervision by local authorities of the
p.000007: performance of their functions—
p.000007: (a) by guardians, in relation to the personal welfare of adults under this Act;
p.000007: (b) where the supervision has been ordered by the sheriff—
p.000007: (i) by persons authorised under intervention orders;
p.000007: (ii) by welfare attorneys.
p.000007: (4) In subsection (1)(c) any reference to—
p.000007: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000007: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000007: guardianship is recognised by the law of Scotland;
p.000007: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000007: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000007: having effect during the granter’s incapacity.
p.000007:
p.000007: Intimation
p.000007: 11 Intimation not required in certain circumstances
p.000007: (1) Where, apart from this subsection, intimation of any application or other proceedings under this Act,
p.000007: or notification of any interlocutor relating to such application or other proceedings, would be given to an adult and
p.000007: the court considers that the intimation or notification would be likely to pose a serious risk to the health of the
p.000007: adult the court may direct that such intimation or notification shall not be given.
p.000007:
p.000007: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000009: 9
p.000009: Part 1—General
p.000009: (2) Where, apart from this subsection and subsection (1), any intimation or notification to him under this Act
p.000009: would be given by the Public Guardian to an adult and the Public Guardian considers that the intimation or notification
p.000009: would be likely to pose a serious risk to the health of the adult the Public Guardian shall not give the
p.000009: intimation or notification.
p.000009: Investigations
p.000009: 12 Investigations
p.000009: (1) In consequence of any investigation carried out under—
p.000009: (a) section 6(2)(c) or (d) by the Public Guardian;
p.000009: (b) section 9(1)(d) or (e) by the Mental Welfare Commission; or
p.000009: (c) section 10(1)(c) or (d) by a local authority,
p.000009: the Public Guardian, Mental Welfare Commission or local authority, as the case may be, may take such steps, including
p.000009: the making of an application to the sheriff, as seem to him or them to be necessary to safeguard the property,
p.000009: financial affairs or personal welfare, as the case may be, of the adult.
p.000009: (2) For the purposes of any investigation mentioned in subsection (1), the Public Guardian, Mental Welfare
p.000009: Commission and local authority shall provide each other with such information and assistance as may be
p.000009: necessary to facilitate the investigation.
p.000009:
p.000009: Codes of practice
p.000009: 13 Codes of practice
p.000009: (1) The Scottish Ministers shall prepare, or cause to be prepared for their approval, and from time
p.000009: to time revise, or cause to be revised for their approval, codes of practice containing guidance as to the
p.000009: exercise by—
p.000009: (a) local authorities and their chief social work officers and mental health officers;
p.000009: (b) continuing and welfare attorneys;
p.000009: (c) persons authorised under intervention orders;
p.000009: (d) guardians;
p.000009: (e) withdrawers;
p.000009: (f) managers of authorised establishments;
p.000009: (g) supervisory bodies;
p.000009: (h) persons authorised to carry out medical treatment or research under Part 5,
p.000009: of their functions under this Act and as to such other matters arising out of or connected with this Act as the
p.000009: Scottish Ministers consider appropriate.
p.000009: (2) Before preparing or approving any code of practice under this Act or making or approving any
p.000009: alteration in it the Scottish Ministers shall consult such bodies as appear to them to be concerned.
p.000009: (3) The Scottish Ministers shall lay copies of any such code and of any alteration in it before the
p.000009: Parliament.
p.000009:
p.000009: 10 Adults with Incapacity (Scotland) Act 2000
p.000009: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000009:
...
p.000011: (3) A welfare power of attorney shall be valid only if it is expressed in a written document which—
p.000011: (a) is subscribed by the granter;
p.000011: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power
p.000011: to which this section applies;
p.000011: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000011: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000011: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000011: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the welfare power
p.000011: of attorney is granted the granter understands its nature and extent;
p.000011: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000011: the granting of the power.
p.000011: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000011: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000011: (5) A welfare power of attorney—
p.000011: (a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a
p.000011: local authority or other body established by or under an enactment); and
p.000011: (b) shall not be exercisable unless—
p.000011: (i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney
p.000011: relates; or
p.000011: (ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.
p.000011: (6) A welfare attorney may not—
p.000011: (a) place the granter in a hospital for the treatment of mental disorder against his will; or
p.000011: (b) consent on behalf of the granter to any form of treatment mentioned in section 48(1) or (2).
p.000011: (7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the
p.000011: welfare attorney.
p.000011: (8) Any reference to a welfare attorney—
p.000011: (a) in relation to subsection (5)(b) in a case where the granter is habitually resident in Scotland; and
p.000011: (b) in subsection (6),
p.000011:
p.000011: 12 Adults with Incapacity (Scotland) Act 2000
p.000011: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
p.000011: shall include a reference to a person granted, under a contract, grant or appointment governed by the
p.000011: law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect
p.000011: during the granter’s incapacity.
p.000011:
p.000011: 17 Attorney not obliged to act in certain circumstances
p.000011: A continuing or welfare attorney shall not be obliged to do anything which would otherwise be within the
p.000011: powers of the attorney if doing it would, in relation to its value or utility, be unduly burdensome or expensive.
p.000011:
p.000011: 18 Power of attorney not granted in accordance with this Act
p.000011: A power of attorney granted after the commencement of this Act which is not granted in accordance with section 15
p.000011: or 16 shall have no effect during any period when the granter is incapable in relation to decisions
p.000011: about the matter to which the power of attorney relates.
p.000011:
p.000011: 19 Registration of continuing or welfare power of attorney
p.000011: (1) A continuing or welfare attorney shall have no authority to act until the document conferring the
p.000011: power of attorney has been registered under this section.
p.000011: (2) For the purposes of registration, the document conferring the power of attorney shall be sent to the Public
p.000011: Guardian who, if he is satisfied that a person appointed to act is prepared to act, shall—
p.000011: (a) enter prescribed particulars of it in the register maintained by him under section 6(2)(b)(i) or (ii) as the case
p.000011: may be;
p.000011: (b) send a copy of it with a certificate of registration to the sender;
p.000011: (c) if it confers a welfare power of attorney, send a copy of it to the Mental Welfare Commission.
p.000011: (3) The document conferring a continuing or welfare power of attorney may contain a condition that
p.000011: the Public Guardian shall not register it under this section until the occurrence of a specified event and
p.000011: in that case the Public Guardian shall not register it until he is satisfied that the specified event has occurred.
p.000011: (4) A copy of a document conferring a continuing or welfare power of attorney authenticated
p.000011: by the Public Guardian shall be accepted for all purposes as sufficient evidence of the contents of the
p.000011: original and of any matter relating thereto appearing in the copy.
p.000011: (5) The Public Guardian shall—
p.000011: (a) on the registration of a document conferring a continuing or welfare power of attorney, send a copy
p.000011: of it to the granter; and
...
p.000013: 13
p.000013: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: 20 Powers of sheriff
p.000013: (1) An application for an order under subsection (2) may be made to the sheriff by any person
p.000013: claiming an interest in the property, financial affairs or personal welfare of the granter of a continuing or welfare
p.000013: power of attorney.
p.000013: (2) Where, on an application being made under subsection (1), the sheriff is satisfied that the granter is
p.000013: incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000013: property, financial affairs or personal welfare insofar as the power of attorney relates to them, and that it is
p.000013: necessary to safeguard or promote these interests, he may make an order—
p.000013: (a) ordaining that the continuing attorney shall be subject to the supervision of the Public Guardian to
p.000013: such extent as may be specified in the order;
p.000013: (b) ordaining the continuing attorney to submit accounts in respect of any period specified in the order
p.000013: for audit to the Public Guardian;
p.000013: (c) ordaining that the welfare attorney shall be subject to the supervision of the local authority to such extent as
p.000013: may be specified in the order;
p.000013: (d) ordaining the welfare attorney to give a report to him as to the manner in which the welfare attorney has
p.000013: exercised his powers during any period specified in the order;
p.000013: (e) revoking—
p.000013: (i) any of the powers granted by the continuing or welfare power of attorney; or
p.000013: (ii) the appointment of an attorney.
p.000013: (3) Where the sheriff makes an order under this section the sheriff clerk shall send a copy of the interlocutor
p.000013: containing the order to the Public Guardian who shall—
p.000013: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the
p.000013: case may be;
p.000013: (b) notify—
p.000013: (i) the granter;
p.000013: (ii) the continuing or welfare attorney;
p.000013: (iii) where it is the welfare attorney who is notified, the local authority and (in a case where the incapacity of the
p.000013: granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission;
p.000013: (iv) where the sheriff makes an order under subsection (2)(c), the local authority.
p.000013: (4) A decision of the sheriff under subsection (2)(a) to (d) shall be final.
p.000013: (5) In this section any reference to—
p.000013: (a) a continuing power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s
p.000013: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000013:
p.000013: 14 Adults with Incapacity (Scotland) Act 2000
p.000013: (asp 4) Part 2—Continuing powers of attorney and welfare powers of attorney
p.000013:
p.000013: (b) a welfare power of attorney shall include a reference to a power (however expressed) under a
p.000013: contract, grant or appointment governed by the law of any country, relating to the granter’s personal
p.000013: welfare and having effect during the granter’s incapacity,
p.000013: and “continuing attorney” and “welfare attorney” shall be construed accordingly.
p.000013:
p.000013: 21 Records: attorneys
p.000013: A continuing or welfare attorney shall keep records of the exercise of his powers.
p.000013:
p.000013: 22 Notification to Public Guardian
p.000013: (1) After a document conferring a continuing or welfare power of attorney has been registered under
p.000013: section 19, the attorney shall notify the Public Guardian—
p.000013: (a) of any change in his address;
p.000013: (b) of any change in the address of the granter of the power of attorney;
p.000013: (c) of the death of the granter of the power of attorney; or
p.000013: (d) of any other event which results in the termination of the power of attorney,
p.000013: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i)
p.000013: or (ii) as the case may be and shall notify the granter (in the case of an event mentioned in paragraph (a) or
p.000013: (d)) and, where the power of attorney relates to the personal welfare of the adult, both the local authority and
p.000013: (in a case where the incapacity of the granter is by reason of, or reasons which include, mental disorder) the Mental
p.000013: Welfare Commission.
p.000013: (2) If, after a document conferring a continuing or welfare power of attorney has been registered
p.000013: under section 19, the attorney dies, his personal representatives shall, if aware of the existence of the power of
p.000013: attorney, notify the Public Guardian who shall enter prescribed particulars in the register maintained by him
p.000013: under section 6(2)(b)(i) or (ii) as the case may be, and shall notify the granter and, where the power of attorney
p.000013: relates to the personal welfare of the adult, both the local authority and (in a case where the
p.000013: incapacity of the granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission.
p.000013:
p.000013: 23 Resignation of continuing or welfare attorney
p.000013: (1) A continuing or welfare attorney who wishes to resign after the document conferring the power of attorney has
p.000013: been registered under section 19 shall give notice in writing of his intention to do so to—
p.000013: (a) the granter of the power of attorney;
p.000013: (b) the Public Guardian;
p.000013: (c) any guardian or, where there is no guardian, the granter’s primary carer;
p.000013: (d) the local authority, where they are supervising the welfare attorney.
p.000013: (2) Subject to subsection (4), the resignation shall not have effect until the expiry of a period of
p.000013: 28 days commencing with the date of receipt by the Public Guardian of the notice given under subsection (1); and
p.000013: on its becoming effective the Public Guardian shall enter prescribed particulars in the register maintained
p.000013: by him under section 6(2)(b)(i) or (ii) as the case may be.
p.000013:
p.000013: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000015: 15
p.000015: Part 3—Accounts and funds
p.000015:
p.000015: (3) Where the resignation is of a welfare attorney, the Public Guardian shall notify the local authority and (in
p.000015: a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder) the
p.000015: Mental Welfare Commission.
p.000015: (4) The resignation of a joint attorney, or an attorney in respect of whom the granter has appointed a
p.000015: substitute attorney, shall take effect on the receipt by the Public Guardian of notice under subsection (1)(b) if
p.000015: evidence that—
p.000015: (a) the remaining joint attorney is willing to continue to act; or
p.000015: (b) the substitute attorney is willing to act, accompanies the notice.
p.000015:
p.000015: 24 Termination of continuing or welfare power of attorney
p.000015: (1) If the granter and the continuing or welfare attorney are married to each other the power of attorney shall,
p.000015: unless the document conferring it provides otherwise, come to an end upon the granting of—
p.000015: (a) a decree of separation to either party;
p.000015: (b) a decree of divorce to either party;
p.000015: (c) declarator of nullity of the marriage.
p.000015: (2) The authority of a continuing or welfare attorney in relation to any matter shall come to an end on the
p.000015: appointment of a guardian with powers relating to that matter.
p.000015: (3) In subsection (2) any reference to—
p.000015: (a) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000015: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000015: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity;
p.000015: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000015: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000015: having effect during the granter’s incapacity.
p.000015: (4) No liability shall be incurred by any person who acts in good faith in ignorance of—
p.000015: (a) the coming to an end of a power of attorney under subsection (1); or
p.000015: (b) the appointment of a guardian as mentioned in subsection (2),
p.000015: nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.
p.000015:
p.000015: PART 3
p.000015: ACCOUNTS AND FUNDS
p.000015: 25 Authority to intromit with funds
p.000015: (1) Subject to section 34, an individual (which does not include a person acting in his capacity as
p.000015: an officer of a local authority or other body established by or under an enactment) may apply to the
p.000015: Public Guardian for authority under this Part to intromit with funds held by a person or organisation (the
p.000015: “fundholder”) on behalf of an adult who is incapable in relation to decisions about the funds or of safeguarding his
p.000015: interests in the funds, and is the sole holder of an account in his name.
p.000015:
p.000015: 16 Adults with Incapacity (Scotland) Act 2000
p.000015: (asp 4) Part 3—Accounts and funds
p.000015:
p.000015: (2) An application for authority under this section shall be made in respect of a specified account with the
p.000015: fundholder and shall not be made if there is an existing authority to intromit under this Part.
p.000015:
p.000015: 26 Application for authority to intromit
p.000015: (1) An application form for authority to intromit with funds shall—
p.000015: (a) state the purposes of the proposed intromission, setting out the specific sums relating to each
p.000015: purpose;
p.000015: (b) be signed by the applicant;
p.000015: (c) be countersigned by a member of such class of persons as is prescribed, who shall declare in the form that—
p.000015: (i) he knows the applicant and has known him for at least 2 years prior to the date of the application;
p.000015: (ii) he knows the adult;
p.000015: (iii) he is not—
p.000015: (A) a relative of or person residing with the applicant or the adult; or
p.000015: (B) a director or employee of the fundholder; or
p.000015: (C) a solicitor acting on behalf of the adult or any other person mentioned in this sub-paragraph in relation to any
p.000015: matter under this Act; or
p.000015: (D) the medical practitioner who has issued the certificate under sub- paragraph (f);
p.000015: (iv) he believes the information contained in the document to be true; and
p.000015: (v) he believes the applicant to be a fit and proper person to intromit with the funds;
p.000015: (d) contain the names and addresses of the nearest relative and primary carer of the adult, if known;
p.000015: (e) identify the account with the fundholder in relation to which the authority is sought;
p.000015: (f) be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—
p.000015: (i) incapable in relation to decisions about; or
p.000015: (ii) incapable of acting to safeguard or promote his interests in, the funds;
p.000015: (g) contain an undertaking that he will open an account (the “designated account”) solely for the purposes
p.000015: of—
p.000015: (i) receiving funds transferred under section 29(1); and
p.000015: (ii) intromitting with those funds.
p.000015: (2) The applicant shall, not later than 14 days after the form has been countersigned as mentioned in
p.000015: subsection (1)(c), send the completed form to the Public Guardian.
p.000015:
p.000015: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000017: 17
p.000017: Part 3—Accounts and funds
p.000017:
p.000017: (3) On receipt of a properly completed form sent timeously to him under subsection (2), the Public Guardian shall
p.000017: intimate the application to the adult, his nearest relative, his primary carer and any person who the Public
p.000017: Guardian considers has an interest in the application and advise them of the prescribed period within which they may
p.000017: object to the granting of the application; and he shall not grant the application without affording to any objector an
p.000017: opportunity of being heard.
p.000017: (4) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application and
p.000017: where he does so he shall—
p.000017: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iii); and
p.000017: (b) issue a certificate of authority to the withdrawer.
p.000017: (5) A certificate of authority issued under subsection (4) shall instruct—
p.000017: (a) the fundholder that the account held in the name of the adult; and
p.000017: (b) the withdrawer that the designated account,
p.000017: must not be overdrawn; and if either account is overdrawn, the fundholder of that account shall have a
p.000017: right of relief against the withdrawer.
p.000017: (6) A certificate of authority issued under subsection (4) shall instruct the fundholder of the account held in
p.000017: the name of the adult that no operations shall be carried out on the account other than those carried
p.000017: out in accordance with the certificate by the person authorised under this section.
p.000017: (7) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000017: applicant and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000017: refuse the application without affording to the applicant, if he objects, an opportunity of being heard.
p.000017: (8) The Public Guardian may at his own instance or at the instance of the applicant or of any person who objects
p.000017: to the granting of the application remit the application for determination by the sheriff, whose decision
p.000017: shall be final.
p.000017: (9) A decision of the Public Guardian—
p.000017: (a) to grant an application under subsection (4) or to refuse an application; or
p.000017: (b) to refuse to remit an application to the sheriff under subsection (8) above, may be appealed to the sheriff,
p.000017: whose decision shall be final.
p.000017: (10) In this Act an individual in respect of whom a form is registered under subsection (4) is referred to as a
p.000017: “withdrawer”.
p.000017:
p.000017: 27 Notification of change of address
p.000017: After the name of a withdrawer has been registered under section 26 the withdrawer shall notify the Public
p.000017: Guardian—
p.000017: (a) of any change in his address; and
p.000017: (b) of any change in the address of the adult,
p.000017: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000017: 6(2)(b)(iii).
p.000017:
...
p.000017: (asp 4) Part 3—Accounts and funds
p.000017:
p.000017: 28 Purposes of intromissions with funds
p.000017: (1) The purposes of intromissions with funds may include any or all of the following—
p.000017: (a) the payment of central and local government taxes for which the adult is responsible;
p.000017: (b) the provisions of sustenance, accommodation, fuel, clothing and related goods and services for the adult;
p.000017: (c) the provision of other services provided for the purposes of looking after or caring for the adult;
p.000017: (d) the settlement of debts owed by or incurred in respect of the adult, including any prescribed fees charged by the
p.000017: Public Guardian in connection with the application to intromit.
p.000017: (2) The Public Guardian may, in any case, authorise payment for the provision of items other than
p.000017: those mentioned in subsection (1).
p.000017: (3) Subject to subsection (4), any funds used by the withdrawer shall be applied only for the benefit of the adult.
p.000017: (4) Where the withdrawer lives with the adult, he may, to the extent authorised by the certificate,
p.000017: apply any funds withdrawn towards household expenses.
p.000017:
p.000017: 29 Withdrawal and use of funds
p.000017: (1) On presentation to it of the certificate issued under section 26(4)(b), the fundholder of the account held in
p.000017: the name of the adult specified in the form may make arrangements to transfer to the designated account such sums as
p.000017: the Public Guardian shall authorise.
p.000017: (2) The fundholder of an account held by an adult shall be liable to the adult for any funds removed from the
p.000017: account under this section at any time when it was aware that the withdrawer’s authority had been
p.000017: terminated or suspended by the Public Guardian under section 31(3), but, on meeting such liability, the fundholder of
p.000017: the account shall have a right of relief against the withdrawer.
p.000017: (3) The Public Guardian may authorise a method of payment other than a method mentioned in subsection
p.000017: (1).
p.000017: (4) A decision of the Public Guardian not to authorise—
p.000017: (a) a method of payment other than a method mentioned in subsection (1); or
p.000017: (b) a payment under subsection (3),
p.000017: may be appealed to the sheriff, whose decision shall be final.
p.000017:
p.000017: 30 Records and inquiries
p.000017: (1) The Scottish Ministers may by regulations provide that a withdrawer shall keep a record of his intromissions
p.000017: with the funds and that the Public Guardian may at any time require a withdrawer to produce such record for the Public
p.000017: Guardian’s inspection.
p.000017: (2) The Public Guardian may—
p.000017: (a) make inquiries from time to time as to the manner in which a withdrawer has exercised his functions
p.000017: under this Part; and
p.000017:
p.000017: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000019: 19
p.000019: Part 3—Accounts and funds
p.000019:
p.000019: (b) ask the withdrawer to produce any records which he has relating to his intromissions.
p.000019: (3) The Public Guardian may require a fundholder of an account in the name of an adult or of a designated account
p.000019: to make its records of the account available for inspection by the Public Guardian.
p.000019: (4) A fundholder complying with a requirement under subsection (3) may charge a reasonable fee for doing
p.000019: so and may recover that fee from the account concerned.
p.000019:
p.000019: 31 Duration and termination of registration
p.000019: (1) Subject to the following provisions of this section, the authority of a withdrawer to intromit
p.000019: with funds under section 26 shall be valid for a period of 3 years commencing with the date of issue of the certificate
p.000019: by the Public Guardian under subsection (4)(b) of that section.
p.000019: (2) The Public Guardian may reduce or extend the period of validity mentioned in subsection (1); and an
p.000019: extension may be without limit of time.
p.000019: (3) The Public Guardian may suspend or terminate the authority of a withdrawer and shall forthwith intimate such
p.000019: suspension or termination to—
p.000019: (a) the withdrawer;
p.000019: (b) the fundholder of the designated account,
p.000019: and such suspension or termination shall have the effect of suspending or, as the case may be, terminating all
p.000019: operations on that account.
p.000019: (4) The Public Guardian may on terminating the authority of the withdrawer grant the withdrawer
p.000019: interim authority to continue to intromit with the funds of the adult for a period not exceeding 4 weeks
p.000019: from the date of the termination; and paragraphs (a) and
p.000019: (b) of section 26(4) shall apply in the case of a grant of interim authority under this subsection as
p.000019: they apply to the grant of an application under that section.
p.000019: (5) Subsections (1) and (2) are without prejudice to the right of the withdrawer to make subsequent
p.000019: applications under the said section 26 after the end of a valid period of authority to withdraw or, as
p.000019: the case may be, a suspension or termination of the authority.
p.000019: (6) A decision of the Public Guardian to reduce or extend a period of validity mentioned in subsection (1) or to
p.000019: suspend or terminate the authority of a withdrawer under subsection
p.000019: (3) may be appealed to the sheriff, whose decision shall be final; and the suspension or termination shall remain in
p.000019: force until the appeal is determined.
p.000019: (7) The authority of a withdrawer to withdraw funds under section 26 shall come to an end—
p.000019: (a) on the appointment of a guardian with powers relating to the funds or account in question;
p.000019: (b) on the granting of an intervention order relating to the funds or account in question; or
p.000019: (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in
p.000019: question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to
p.000019: an end of a withdrawer’s authority under this subsection.
p.000019: (8) In subsection (7) any reference to—
p.000019:
p.000019: 20 Adults with Incapacity (Scotland) Act 2000
p.000019: (asp 4) Part 3—Accounts and funds
p.000019:
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000019: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000019:
p.000019: 32 Joint accounts
p.000019: Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes
p.000019: incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other
p.000019: joint account holder may continue to operate the account unless—
p.000019: (a) the terms of the account provide otherwise; or
p.000019: (b) he is barred by an order of any court from so doing.
p.000019:
p.000019: 33 Transfer of funds
p.000019: (1) The Public Guardian may, on an application made at the same time as, or at any time after, an application for
p.000019: authority to intromit with funds held in a specified account by a fundholder, authorise the transfer of funds
p.000019: from that account to another specified account.
p.000019: (2) In subsection (1), “specified” means specified in the application to transfer funds and in the authorisation of
p.000019: that transfer; and the account to which funds are transferred may be specified as to kind of account.
p.000019: (3) A decision of the Public Guardian under subsection (1) may be appealed to the sheriff, whose decision shall be
p.000019: final.
p.000019:
p.000019: 34 Disapplication of Part 3
p.000019: (1) This Part shall not apply in the case of an adult in relation to whom—
p.000019: (a) there is a guardian or continuing attorney with powers relating to the funds or account in question;
p.000019: or
p.000019: (b) an intervention order has been granted relating to the funds or account in question,
p.000019: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such
p.000019: appointment or grant.
p.000019: (2) In this section any reference to—
p.000019: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000019: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000019: guardianship is recognised by the law of Scotland;
p.000019: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000019: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
...
p.000021: (b) an applicant for registration of an establishment, that it shall not apply.
p.000021: (4) The Scottish Ministers may by regulations amend the list of authorised establishments set out in subsection
p.000021: (1).
p.000021: (5) In this Part, “the managers” has the meaning set out in schedule 1; and “resident” in relation
p.000021: to an authorised establishment means an adult whose main residence for the time being is the authorised
p.000021: establishment or who is liable to be detained there under the 1984 Act.
p.000021:
p.000021: 36 Registration for purposes of managing residents’ finances
p.000021: After section 61A of the Social Work (Scotland) Act 1968 (c.49) there shall be inserted—
p.000021:
p.000021: 22 Adults with Incapacity (Scotland) Act 2000
p.000021: (asp 4) Part 4—Management of residents’ finances
p.000021:
p.000021: “61B Registration for purpose of managing residents’ finances
p.000021: (1) Any residential or other establishment in respect of which there is no requirement to
p.000021: register under section 61 of this Act may apply for registration under this Part of this Act for the purposes
p.000021: only of Part 4 (Management of Residents’ Finances) of the Adults with Incapacity (Scotland) Act 2000 (asp
p.000021: 4).
p.000021: (2) Where an application for registration to which subsection (1) applies is granted, the
p.000021: establishment shall be entered in the register kept for the purposes of section 61(2) above by the local
p.000021: authority or, as the case may be, the Scottish Ministers.
p.000021: (3) The provisions of this Part of this Act shall apply to establishments to which this section applies subject to
p.000021: the following—
p.000021: (a) section 61(2) and (3) shall not apply;
p.000021: (b) section 62(8) and (8A) shall not apply;
p.000021: (c) section 65 shall not apply;
p.000021: (d) the provisions of section 67(1) shall apply only where the person carrying on the establishment is
p.000021: registered.”.
p.000021:
p.000021: 37 Residents whose affairs may be managed
p.000021: (1) The managers of an authorised establishment shall be entitled to manage on behalf of any resident in the
p.000021: establishment in relation to whom a certificate has been issued under subsection (2) any of the matters set out in
p.000021: section 39.
p.000021: (2) Where the managers of an authorised establishment, having considered all other appropriate courses of
p.000021: action, have decided that management on behalf of the resident of the matters set out in section 39 by them is the most
p.000021: appropriate course of action, they shall cause to be examined by a medical practitioner any resident in the
p.000021: establishment who they believe may be incapable in relation to decisions as to, or of safeguarding his interest in,
p.000021: any of the resident’s affairs referred to in section 39; and if the medical practitioner finds that the
p.000021: resident is so incapable he shall issue a certificate in prescribed form to that effect.
p.000021: (3) Subject to subsection (8), the managers of the authorised establishment shall intimate their
...
p.000023: construed accordingly.
p.000023: (2) In managing these matters, the managers of an authorised establishment shall—
p.000023: (a) act only for the benefit of the resident; and
p.000023: (b) have regard to the sentimental value that any item might have for the resident, or would have but for the
p.000023: resident’s incapacity.
p.000023: (3) The managers of an authorised establishment shall not, without the consent of the supervisory body,
p.000023: manage any matter if that matter has a value greater than that which is prescribed for the purposes of this subsection.
p.000023: (4) The supervisory body may in relation to an individual resident permit the managers of the authorised
p.000023: establishment to manage any matter which has a value greater than that which is prescribed in relation to it under
p.000023: subsection (3).
p.000023: (5) For the purpose of this section, “manage” denotes no greater responsibility than complying with the
p.000023: duties set out in this section.
p.000023:
p.000023: 40 Supervisory bodies
p.000023: (1) A supervisory body for the purposes of this Part is—
p.000023: (a) in relation to a registered establishment (other than an establishment mentioned in paragraph (f) of section
p.000023: 35(1)), the person or body with whom the establishment is required to register;
p.000023: (b) in relation to an authorised establishment mentioned in paragraphs (a), (c), (f) or
p.000023: (g) of section 35(1), the Health Board for the area in which the authorised establishment is situated;
p.000023: (c) in relation to an authorised establishment mentioned in paragraph (e) of that section, the local
p.000023: authority of the area in which the authorised establishment is situated,
p.000023: and any reference in this Part to an authorised establishment in relation to a supervisory body is a reference to
p.000023: an authorised establishment for which the supervisory body is responsible.
p.000023: (2) A supervisory body shall from time to time make inquiry as to the manner in which the managers of an authorised
p.000023: establishment are carrying out the management of residents’ affairs and in particular the manner in which they are
p.000023: carrying out their functions under section 41.
p.000023: (3) A supervisory body shall investigate any complaint received as to the manner in which the managers of an
p.000023: authorised establishment are managing residents’ affairs.
p.000023: (4) The Scottish Ministers may by regulations amend the list of supervisory bodies set out in subsection (1).
p.000023:
p.000023: 41 Duties and functions of managers of authorised establishment
p.000023: The managers of an authorised establishment shall, in relation to residents whose affairs they are managing under
p.000023: section 39—
p.000023: (a) claim, receive and hold any pension, benefit, allowance or other payment to which the resident is entitled
p.000023: other than under the Social Security Contributions and Benefits Act 1992 (c.4);
p.000023:
p.000023: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000025: 25
p.000025: Part 4—Management of residents’ finances
p.000025:
p.000025: (b) keep the funds of residents separate from the funds of the establishment;
p.000025: (c) comply with any requirements of the supervisory body as respects keeping the funds of residents
p.000025: separate or distinguishable from each other;
p.000025: (d) ensure that where, at any time, the total amount of funds held on behalf of any resident exceeds such sum as
p.000025: may from time to time be prescribed they shall be placed so as to earn interest;
p.000025: (e) keep records of all transactions made in relation to the funds held by them in respect of each
p.000025: resident for whose benefit the funds are held and managed and, in particular, ensure that details of the balance and
p.000025: any interest due to each resident can be ascertained at any time;
p.000025: (f) produce such records when requested to do so by the resident, his nearest relative or the supervisory body;
p.000025: (g) spend money only on items or services which are of benefit to the resident on whose behalf the
p.000025: funds are held;
p.000025: (h) not spend money on items or services which are provided by the establishment to or for such resident as part of
p.000025: its normal service;
p.000025: (i) make proper provision for indemnifying residents against any loss attributable to—
p.000025: (i) any act or omission on the part of the managers of the establishment in exercising the powers
p.000025: conferred by this Part or of others for whom the managers are responsible or attributable to any
p.000025: expenditure in breach of paragraph (g);
p.000025: (ii) any breach of duty, misuse of funds or failure to act reasonably and in good faith on the part of the managers.
p.000025:
p.000025: 42 Authorisation of named manager to withdraw from resident’s account
p.000025: (1) On an application in writing by the managers of an authorised establishment the supervisory body
p.000025: may issue a certificate of authority under this section in relation to any resident named in the application.
p.000025: (2) An application under subsection (1) shall specify one or more persons (being managers, officers or members
p.000025: of staff of the establishment) who shall exercise the authority conferred by this section.
p.000025: (3) A certificate of authority shall be signed by the officer of the supervisory body authorised by
p.000025: the body to do so and shall—
p.000025: (a) specify accounts or other funds of the resident;
p.000025: (b) name the persons specified in the application (the “authorised persons”);
p.000025: (c) specify the period of validity of the certificate of authority, being a period not exceeding the
p.000025: period of validity of the certificate issued under section 37(2).
p.000025: (4) The authorised persons may make withdrawals from such account or source of funds of the named resident as is
p.000025: specified in the certificate of authority and the fundholder may make payments accordingly.
p.000025: (5) The supervisory body may at any time after it has issued a certificate of authority, revoke it
p.000025: and if it does so it shall notify the fundholder of the revocation.
p.000025:
p.000025: 26 Adults with Incapacity (Scotland) Act 2000
p.000025: (asp 4) Part 4—Management of residents’ finances
p.000025:
p.000025:
p.000025: 43 Statement of resident’s affairs
p.000025: (1) In this section, “resident” means a resident of an authorised establishment whose affairs are being managed in
p.000025: accordance with the provisions of this Part and “statement” means a statement of the affairs of the resident.
p.000025: (2) Where a resident ceases to be incapable of managing his affairs, the managers of the establishment
p.000025: shall prepare a statement as at the date on which he ceases to be incapable and shall give a copy to him.
p.000025: (3) Where a resident moves from an authorised establishment to another authorised establishment, the
p.000025: managers of the establishment from which he moves shall, except where he has ceased to be incapable,
p.000025: prepare a statement as at the date on which he moves and shall send a copy of the statement to the managers of
p.000025: the other establishment.
p.000025: (4) Where a resident leaves an authorised establishment, other than to move to another authorised
p.000025: establishment and except where he has ceased to be incapable, the managers of the establishment shall prepare a
p.000025: statement as at the date on which he leaves and shall give a copy of the statement to any person who appears to them to
p.000025: be the person who will manage his affairs.
p.000025:
p.000025: 44 Resident ceasing to be resident of authorised establishment
p.000025: (1) Where a resident ceases to be a resident of an authorised establishment, or ceases to be incapable, the
p.000025: managers of the establishment shall continue, for a period not exceeding 3 months from the date on which he ceases to
p.000025: be a resident or, as the case may be, to be incapable, to manage his affairs while such other arrangements as
p.000025: are necessary for managing his affairs are being made.
p.000025: (2) At the end of the period referred to in subsection (1) during which the managers of the establishment have
p.000025: continued to manage the resident’s affairs, they shall prepare a statement and shall give a copy of it to—
p.000025: (a) the resident, if he has ceased to be incapable; or
p.000025: (b) any person who appears to them to be the person who will manage his affairs.
p.000025: (3) Where a resident ceases to be a resident of an authorised establishment and his affairs are to be managed by
p.000025: another establishment, authority or person (including himself) the managers of the establishment shall take such
p.000025: steps as are necessary to transfer his affairs to that establishment, authority or person, as the case may be.
p.000025: (4) Where a resident ceases to be a resident of an authorised establishment the managers of the establishment shall
p.000025: within 14 days of that event inform—
p.000025: (a) the supervisory body; and
p.000025: (b) where the resident has not ceased to be incapable and has moved neither—
p.000025: (i) to another authorised establishment; nor
p.000025: (ii) into the care of a local authority,
p.000025: the local authority of the area in which they expect him to reside.
p.000025:
p.000025: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000027: 27
p.000027: Part 4—Management of residents’ finances
p.000027:
p.000027: 45 Appeal, revocation etc.
p.000027: (1) Where it appears to a supervisory body that the managers of an authorised establishment are no longer operating
p.000027: as such or have failed to comply with any requirement of this Part or that, for any other reason, it is no longer
p.000027: appropriate that they should continue to manage residents’ affairs it may revoke—
p.000027: (a) in the case of a registered establishment to which section 61B of the Social Work (Scotland) Act 1968 (c.49)
p.000027: applies, the registration;
p.000027: (b) in any other case, the power to manage.
p.000027: (2) Where the managers of a registered establishment have given notice to the supervisory body under section 35(3)
p.000027: the supervisory body shall revoke the registration.
p.000027: (3) Where a registration or a power to manage has been revoked under this section, the supervisory
p.000027: body shall within a period of 14 days from such revocation take over management of the residents’
p.000027: affairs and, where they do so, comply with the requirements imposed by and under this Part upon
p.000027: the managers of an authorised establishment.
p.000027: (4) The supervisory body shall, within the period of 3 months after taking over management of residents’ affairs
p.000027: under subsection (3), cause that management to be transferred to such other establishment, authority or person
p.000027: (who may be the resident) as they consider appropriate.
p.000027: (5) Where the supervisory body is satisfied that the circumstances mentioned in subsection (1)
p.000027: no longer apply in relation to an establishment whose power to manage it has revoked, it may annul the revocation
p.000027: of the power and, where necessary, of the registration.
p.000027: (6) Any decision of a supervisory body may be appealed to the sheriff, whose decision shall be final.
p.000027:
p.000027: 46 Disapplication of Part 4
p.000027: (1) This Part shall not apply to any of the matters which may be managed under section 39 if—
p.000027: (a) there is a guardian, continuing attorney, or other person with powers relating to that matter; or
p.000027: (b) an intervention order has been granted relating to that matter,
p.000027: but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian,
p.000027: continuing attorney, other person or intervention order.
p.000027: (2) In this section any reference to—
p.000027: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000027: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000027: guardianship is recognised by the law of Scotland;
p.000027: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000027: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
p.000027: property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
p.000027:
p.000027: 28 Adults with Incapacity (Scotland) Act 2000
p.000027: (asp 4) Part 5—Medical treatment and research
p.000027:
p.000027: PART 5
p.000027: MEDICAL TREATMENT AND RESEARCH
p.000027: 47 Authority of persons responsible for medical treatment
p.000027: (1) This section applies where the medical practitioner primarily responsible for the medical treatment of an
p.000027: adult—
p.000027: (a) is of the opinion that the adult is incapable in relation to a decision about the medical
p.000027: treatment in question; and
p.000027: (b) has certified in accordance with subsection (5) that he is of this opinion.
p.000027: (2) Without prejudice to any authority conferred by any other enactment or rule of law, and subject to sections 49
p.000027: and 50 and to the following provisions of this section, the medical practitioner primarily responsible for the
p.000027: medical treatment of the adult shall have, during the period specified in the certificate, authority to do what
p.000027: is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or
p.000027: mental health of the adult.
p.000027: (3) The authority conferred by subsection (2) shall be exercisable also by any other person who is authorised by
p.000027: the medical practitioner primarily responsible for the medical treatment of the adult to carry out medical
p.000027: treatment and who is acting—
p.000027: (a) on his behalf under his instructions; or
p.000027: (b) with his approval or agreement.
p.000027: (4) In this Part “medical treatment” includes any procedure or treatment designed to safeguard or
p.000027: promote physical or mental health.
p.000027: (5) A certificate for the purposes of subsection (1) shall be in the prescribed form and shall specify the period
p.000027: during which the authority conferred by subsection (2) shall subsist, being a period which—
p.000027: (a) the medical practitioner primarily responsible for the medical treatment of the adult considers
p.000027: appropriate to the condition or circumstances of the adult; but
p.000027: (b) does not exceed one year from the date of the examination on which the certificate is based.
p.000027: (6) If after issuing a certificate, the medical practitioner primarily responsible for the medical
p.000027: treatment of the adult is of the opinion that the condition or circumstances of the adult have changed he may—
p.000027: (a) revoke the certificate;
p.000027: (b) issue a new certificate specifying such period not exceeding one year from the date of revocation
p.000027: of the old certificate as he considers appropriate to the new condition or circumstances of the adult.
p.000027: (7) The authority conferred by subsection (2) shall not authorise—
p.000027: (a) the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the
p.000027: circumstances;
p.000027: (b) action which would be inconsistent with any decision by a competent court;
p.000027: (c) placing an adult in a hospital for the treatment of mental disorder against his will.
p.000027: (8) The authority conferred by subsection (2) shall not authorise medical treatment prescribed
p.000027: in regulations made under section 48.
p.000027:
p.000027: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000029: 29
p.000029: Part 5—Medical treatment and research
p.000029:
p.000029: (9) Subject to subsection (10), where any question as to the authority of any person to provide
p.000029: medical treatment in pursuance of subsection (2)—
p.000029: (a) is the subject of proceedings in any court (other than for the purposes of any application to the
p.000029: court made under regulations made under section 48); and
p.000029: (b) has not been determined,
p.000029: medical treatment authorised by subsection (2) shall not be given unless it is authorised by any other enactment or
p.000029: rule of law for the preservation of the life of the adult or the prevention of serious deterioration in his medical
p.000029: condition.
p.000029: (10) Nothing in subsection (9) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 48 Exceptions to authority to treat
p.000029: (1) The authority conferred by section 47(2) does not extend to the giving of any of the forms of
p.000029: treatment to which Part X of the 1984 Act applies to a patient to whom that Part applies (which Part authorises
p.000029: certain treatments for mental disorder for certain patients detained under that Act).
p.000029: (2) The Scottish Ministers may by regulations specify medical treatment, or a class or classes of
p.000029: medical treatment, in relation to which the authority conferred by section 47(2) shall not apply and
p.000029: make provision about the medical treatment, or a class or classes of medical treatment, in relation to which
p.000029: that authority does apply.
p.000029: (3) Regulations made under subsection (2) may provide for the circumstances in which the specified medical
p.000029: treatment or specified class or classes of medical treatment may be carried out.
p.000029:
p.000029: 49 Medical treatment where there is an application for intervention or guardianship order
p.000029: (1) Section 47(2) shall not apply if, to the knowledge of the medical practitioner primarily responsible for the
p.000029: medical treatment of the adult, an application for an intervention order or a guardianship order with power in
p.000029: relation to any medical treatment referred to in that subsection has been made to the sheriff and has not been
p.000029: determined.
p.000029: (2) Until the application has been finally determined, medical treatment authorised by section 47(2)
p.000029: shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life of
p.000029: the adult or the prevention of serious deterioration in his medical condition.
p.000029: (3) Nothing in subsection (2) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the provision of such medical treatment.
p.000029:
p.000029: 50 Medical treatment where guardian etc. has been appointed
p.000029: (1) This section applies where a guardian or a welfare attorney has been appointed or a person has
p.000029: been authorised under an intervention order with power in relation to any medical treatment referred to in
p.000029: section 47.
p.000029: (2) The authority conferred by section 47(2) shall not apply where—
p.000029: (a) subsection (1) applies;
p.000029:
p.000029: 30 Adults with Incapacity (Scotland) Act 2000
p.000029: (asp 4) Part 5—Medical treatment and research
p.000029:
p.000029: (b) the medical practitioner primarily responsible for the medical treatment of the adult is aware of the
p.000029: appointment or, as the case may be, authorisation; and
p.000029: (c) it would be reasonable and practicable for that medical practitioner to obtain the consent of the guardian,
p.000029: welfare attorney or person authorised under the intervention order, as the case may be, to any proposed
p.000029: medical treatment but he has failed to do so.
p.000029: (3) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is no
p.000029: disagreement as to the medical treatment of the adult, any person having an interest in the personal welfare
p.000029: of the adult may appeal the decision as to the medical treatment to the Court of Session.
p.000029: (4) Where the medical practitioner primarily responsible for the medical treatment of the adult has
p.000029: consulted the guardian, welfare attorney or person authorised under the intervention order and there is a
...
p.000029: of the adult or the prevention of serious deterioration in his medical condition.
p.000029: (8) Nothing in subsection (7) shall authorise the provision of any medical treatment where an interdict has been
p.000029: granted and continues to have effect prohibiting the giving of such medical treatment.
p.000029: (9) The Mental Welfare Commission shall establish and maintain a list of medical practitioners
p.000029: from whom they shall nominate the medical practitioner who is to give the opinion under subsection (4).
p.000029: (10) In this section any reference to—
p.000029:
p.000029: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000031: 31
p.000031: Part 5—Medical treatment and research
p.000031:
p.000031: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000031: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000031: guardianship is recognised by the law of Scotland;
p.000031: (b) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment
p.000031: governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and
p.000031: having effect during the granter’s incapacity.
p.000031:
p.000031: 51 Authority for research
p.000031: (1) No surgical, medical, nursing, dental or psychological research shall be carried out on any adult who is
p.000031: incapable in relation to a decision about participation in the research unless—
p.000031: (a) research of a similar nature cannot be carried out on an adult who is capable in relation to such a decision; and
p.000031: (b) the circumstances mentioned in subsection (2) are satisfied.
p.000031: (2) The circumstances referred to in subsection (1) are that—
p.000031: (a) the purpose of the research is to obtain knowledge of—
p.000031: (i) the causes, diagnosis, treatment or care of the adult’s incapacity; or
p.000031: (ii) the effect of any treatment or care given during his incapacity to the adult which relates to that incapacity;
p.000031: and
p.000031: (b) the conditions mentioned in subsection (3) are fulfilled.
p.000031: (3) The conditions are—
p.000031: (a) the research is likely to produce real and direct benefit to the adult;
p.000031: (b) the adult does not indicate unwillingness to participate in the research;
p.000031: (c) the research has been approved by the Ethics Committee;
p.000031: (d) the research entails no foreseeable risk, or only a minimal foreseeable risk, to the adult;
p.000031: (e) the research imposes no discomfort, or only minimal discomfort, on the adult; and
...
p.000031:
p.000031: 52 Appeal against decision as to medical treatment
p.000031: Any decision taken for the purposes of this Part, other than a decision by a medical practitioner under
p.000031: section 50, as to the medical treatment of the adult may be appealed by any person having an interest in the personal
p.000031: welfare of the adult to the sheriff and thence, with the leave of the sheriff, to the Court of Session.
p.000031:
p.000031:
p.000031: PART 6
p.000031: INTERVENTION ORDERS AND GUARDIANSHIP ORDERS
p.000031: Intervention orders
p.000031: 53 Intervention orders
p.000031: (1) The sheriff may, on an application by any person (including the adult himself) claiming an interest in the
p.000031: property, financial affairs or personal welfare of an adult, if he is satisfied that the adult is incapable
p.000031: of taking the action, or is incapable in relation to the decision about his property, financial affairs or personal
p.000031: welfare to which the application relates, make an order (in this Act referred to as an “intervention order”).
p.000031: (2) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000031: or guardianship order which may have been previously made in relation to the adult, and to any order varying,
p.000031: or ancillary to, such an order.
p.000031: (3) Where it appears to the local authority that—
p.000031: (a) the adult is incapable as mentioned in subsection (1); and
p.000031: (b) no application has been made or is likely to be made for an order under this section in relation
p.000031: to the decision to which the application under this subsection relates; and
p.000031: (c) an intervention order is necessary for the protection of the property, financial affairs or personal
p.000031: welfare of the adult,
p.000031:
p.000031: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000033: 33
p.000033: Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: they shall apply under this section for an order.
p.000033: (4) Section 57(3) and (4) shall apply to an application under this section and, for this purpose, for
p.000033: the reference to the individual or office holder nominated for appointment as guardian there shall be substituted
p.000033: a reference to a person nominated in such application.
p.000033: (5) An intervention order may—
p.000033: (a) direct the taking of any action specified in the order;
p.000033: (b) authorise the person nominated in the application to take such action or make such decision in relation to
p.000033: the property, financial affairs or personal welfare of the adult as is specified in the order;
p.000033: (6) Where an intervention order directs the acquisition of accommodation for, or the disposal of any
...
p.000033: as respects the consideration shall be required before the accommodation is acquired or, as the case may be, disposed
p.000033: of.
p.000033: (7) In making or varying an intervention order the sheriff may, and in the case of an intervention
p.000033: order relating to property or financial affairs shall, except where—
p.000033: (a) the person authorised under the intervention order is unable to find caution; but
p.000033: (b) the sheriff is satisfied that nevertheless he is suitable to be authorised under the order,
p.000033: require the person authorised under the order to find caution.
p.000033: (8) The sheriff may, on an application by—
p.000033: (a) the person authorised under the intervention order; or
p.000033: (b) the adult; or
p.000033: (c) any person claiming an interest in the property, financial affairs or personal welfare of the adult,
p.000033: make an order varying the terms of, or recalling, the intervention order or any other order made for the
p.000033: purposes of the intervention order.
p.000033: (9) Anything done under an intervention order shall have the same effect as if done by the adult if he had the
p.000033: capacity to do so.
p.000033: (10) Where an intervention order is made, the sheriff clerk shall forthwith send a copy of the interlocutor
p.000033: containing the order to the Public Guardian who shall—
p.000033: (a) enter in the register maintained by him under section 6(2)(b)(v) such particulars of the order as may be
p.000033: prescribed; and
p.000033: (b) notify the adult, the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000033: which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors
p.000033: which include it) the Mental Welfare Commission.
p.000033: (11) A transaction for value between a person authorised under an intervention order, purporting to act as
p.000033: such, and a third party acting in good faith shall not be invalid on the ground only that—
p.000033: (a) the person acted outwith the scope of his authority;
p.000033:
p.000033: 34 Adults with Incapacity (Scotland) Act 2000
p.000033: (asp 4) Part 6—Intervention orders and guardianship orders
p.000033:
p.000033: (b) the person failed to observe any requirement, whether substantive or procedural, imposed by or under this Act or
p.000033: by the sheriff or by the Public Guardian; or
p.000033: (c) there was any irregularity whether substantive or procedural in the authorisation of the person.
p.000033: (12) A person authorised under an intervention order may recover from the estate of the adult the amount of such
p.000033: reasonable outlays as he incurs in doing anything directed or authorised under the order.
p.000033: (13) Where a third party has acquired, in good faith and for value, title to any interest in
p.000033: heritable property from a person authorised under an intervention order that title shall not be challengeable on the
p.000033: ground only—
p.000033: (a) of any irregularity of procedure in the making of the intervention order; or
p.000033: (b) that the person authorised under the intervention order has acted outwith the scope of the authority.
p.000033: (14) Sections 64(2) and 67(3) and (4) shall apply to an intervention order as they apply to a guardianship order and,
p.000033: for this purpose, for any reference to a guardian there shall be substituted a reference to the person authorised under
p.000033: the order.
p.000033:
p.000033: 54 Records: intervention orders
p.000033: A person authorised under an intervention order shall keep records of the exercise of his powers.
p.000033:
p.000033: 55 Notification of change of address
p.000033: After particulars relating to an intervention order are entered in the register under section 53 the
p.000033: person authorised under the intervention order shall notify the Public Guardian—
p.000033: (a) of any change in his address; and
p.000033: (b) of any change in the address of the adult,
p.000033: and the Public Guardian shall enter prescribed particulars in the register maintained by him under section
p.000033: 6(2)(b)(v) and notify the local authority and (in a case where the adult’s incapacity is by reason of,
p.000033: or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or
p.000033: factors which include it) the Mental Welfare Commission.
p.000033:
p.000033: 56 Registration of intervention order relating to heritable property
p.000033: (1) This section applies where the sheriff makes an intervention order which vests in the person
p.000033: authorised under the order any right to deal with, convey or manage any interest in heritable property which is
p.000033: recorded or is capable of being recorded in the General Register of Sasines or is registered or is capable of being
p.000033: registered in the Land Register of Scotland.
p.000033: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000033: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000033:
p.000033: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000035: 35
p.000035: Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (3) The person authorised under the order shall forthwith apply to the Keeper of the Registers of
p.000035: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or,
p.000035: as the case may be, for registering of it in the Land Register of Scotland.
...
p.000035: (b) a statement that the person authorised under the order has powers relating to each property specified in the
p.000035: order;
p.000035: (c) a copy of the interlocutor.
p.000035: (5) Where the interlocutor is to be recorded in the General Register of Sasines, the Keeper shall—
p.000035: (a) record the interlocutor in the Register; and
p.000035: (b) endorse the interlocutor to the effect that it has been so recorded.
p.000035: (6) Where the interlocutor is to be registered in the Land Register of Scotland, the Keeper shall update the title
p.000035: sheet of the property to show it.
p.000035: (7) The person authorised under the order shall send the endorsed interlocutor or, as the case may
p.000035: be, the updated Land Certificate or an office copy thereof to the Public Guardian who shall enter
p.000035: prescribed particulars of it in the register maintained by him under section 6(2)(b)(v).
p.000035:
p.000035: Guardianship orders
p.000035: 57 Application for guardianship order
p.000035: (1) An application may be made under this section by any person (including the adult himself) claiming
p.000035: an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing
p.000035: an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.
p.000035: (2) Where it appears to the local authority that—
p.000035: (a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and
p.000035: (b) no application has been made or is likely to be made for an order under this section; and
p.000035: (c) a guardianship order is necessary for the protection of the property, financial affairs or personal
p.000035: welfare of the adult,
p.000035: they shall apply under this section for an order.
p.000035: (3) There shall be lodged in court along with an application under this section—
p.000035: (a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days
p.000035: before the lodging of the application by at least two medical practitioners one of whom, in a case where the
p.000035: incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of
p.000035: section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;
p.000035:
p.000035: 36 Adults with Incapacity (Scotland) Act 2000
p.000035: (asp 4) Part 6—Intervention orders and guardianship orders
p.000035:
p.000035: (b) where the application relates to the personal welfare of the adult, a report, in prescribed form,
p.000035: from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate,
p.000035: from the chief social work officer), containing his opinion as to—
p.000035: (i) the general appropriateness of the order sought, based on an interview and assessment of the adult carried
p.000035: out not more than 30 days before the lodging of the application; and
p.000035: (ii) the suitability of the individual nominated in the application to be appointed guardian;
p.000035: and
p.000035: (c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed
p.000035: form, based on an interview and assessment of the adult carried out not more than 30 days before the
p.000035: lodging of the application, by a person who has sufficient knowledge to make such a report as to the
p.000035: matters referred to in paragraph (b)(i) and (ii).
p.000035: (4) Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he
p.000035: shall give notice to the chief social work officer of his intention to make an application under this section and
p.000035: the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as
p.000035: the case may be, the mental health officer, within 21 days of the date of the notice.
p.000035: (5) The sheriff may, on an application being made to him, at any time before the disposal of the application made
p.000035: under this section, make an order for the appointment of an interim guardian.
p.000035: (6) The appointment of an interim guardian in pursuance of this section shall, unless recalled earlier,
p.000035: cease to have effect—
p.000035: (a) on the appointment of a guardian under section 58; or
p.000035: (b) at the end of the period of 3 months from the date of appointment, whichever is the earlier.
p.000035:
p.000035: 58 Disposal of application
p.000035: (1) Where the sheriff is satisfied in considering an application under section 57 that—
p.000035: (a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his
p.000035: property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
p.000035: (b) no other means provided by or under this Act would be sufficient to enable the adult’s interests in his
...
p.000037: 37
p.000037: Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (4) Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as
p.000037: a “guardianship order”) appointing the individual or office holder nominated in the application to be the
p.000037: guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown,
p.000037: he may determine.
p.000037: (5) Where more than one individual or office holder is nominated in the application, a guardianship
p.000037: order may, without prejudice to the power under section 62(1) to appoint joint guardians, appoint two or more guardians
p.000037: to exercise different powers in relation to the adult.
p.000037: (6) In making a guardianship order relating to the property or financial affairs of the adult the sheriff shall,
p.000037: except where—
p.000037: (a) the individual is unable to find caution; but
p.000037: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian, require an individual
p.000037: appointed as guardian to find caution.
p.000037: (7) Where the sheriff makes a guardianship order the sheriff clerk shall forthwith send a copy of the
p.000037: interlocutor containing the order to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv);
p.000037: (b) when satisfied that the guardian has found caution if so required, issue a certificate of appointment
p.000037: to the guardian;
p.000037: (c) notify the adult of the appointment of the guardian; and
p.000037: (d) notify the local authority and (in a case where the incapacity of the adult is by reason of, or
p.000037: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000037: factors which include it) the Mental Welfare Commission of the terms of the interlocutor.
p.000037:
p.000037: 59 Who may be appointed as guardian
p.000037: (1) The sheriff may appoint as guardian—
p.000037: (a) any individual whom he considers to be suitable for appointment and who has consented to being
p.000037: appointed;
p.000037: (b) where the guardianship order is to relate only to the personal welfare of the adult, the chief social work
p.000037: officer of the local authority.
p.000037: (2) Where the guardianship order is to relate to the property and financial affairs and to the personal welfare
p.000037: of the adult and joint guardians are to be appointed, the chief social work officer of the local authority may
p.000037: be appointed guardian in relation only to the personal welfare of the adult.
p.000037: (3) The sheriff shall not appoint an individual as guardian to an adult unless he is satisfied that the individual
p.000037: is aware of—
p.000037: (a) the adult’s circumstances and condition and of the needs arising from such circumstances and
p.000037: condition; and
p.000037: (b) the functions of a guardian.
p.000037: (4) In determining if an individual is suitable for appointment as guardian, the sheriff shall have regard to—
p.000037: (a) the accessibility of the individual to the adult and to his primary carer;
p.000037:
p.000037: 38 Adults with Incapacity (Scotland) Act 2000
p.000037: (asp 4) Part 6—Intervention orders and guardianship orders
p.000037:
p.000037: (b) the ability of the individual to carry out the functions of guardian;
p.000037: (c) any likely conflict of interest between the adult and the individual;
p.000037: (d) any undue concentration of power which is likely to arise in the individual over the adult;
p.000037: (e) any adverse effects which the appointment of the individual would have on the interests of the adult;
p.000037: (f) such other matters as appear to him to be appropriate.
p.000037: (5) Paragraphs (c) and (d) of subsection (4) shall not be regarded as applying to an individual by
p.000037: reason only of his being a close relative of, or person residing with, the adult.
p.000037:
p.000037: 60 Renewal of guardianship order by sheriff
p.000037: (1) At any time before the end of a period in respect of which a guardianship order has been made or renewed, an
p.000037: application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such
p.000037: an application is so made, the order shall continue to have effect until the application is determined.
p.000037: (2) Where it appears to the local authority that an application for renewal of a guardianship order under
p.000037: subsection (1) is necessary but that no such application has been made or is likely to be made, they shall apply under
p.000037: subsection (1) for the renewal of such an order and, where such an application is so made, the order shall continue to
p.000037: have effect until the application is determined.
p.000037: (3) Section 57(3) shall apply for the purposes of an application made under this section as it applies for the
p.000037: purposes of an application made under that section; and for the purposes of so applying that subsection references
p.000037: to the appointment of a guardian (however expressed) shall be construed as references to the continuation of
p.000037: appointment.
p.000037: (4) Section 58 shall apply to an application under this section as it applies to an application under section 57;
p.000037: and for the purposes of so applying that section—
p.000037: (a) references to the making of a guardianship order and the appointment of a guardian (however
p.000037: expressed) shall be construed as references to, respectively, the renewal of the order and the continuation of
p.000037: appointment;
p.000037: (b) for subsection (4) there shall be substituted—
p.000037: “(4) Where the sheriff grants an application under section 60, he may continue the guardianship order for a period of
p.000037: 5 years or for such other period (including an indefinite period) as, on cause shown, he may determine.”.
p.000037: (5) Where the sheriff refuses an application under this section, the sheriff clerk shall forthwith send
p.000037: a copy of the interlocutor containing the refusal to the Public Guardian who shall—
p.000037: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000037: (b) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000037: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000037: include it) the Mental Welfare Commission.
p.000037:
p.000037: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000039: 39
p.000039: Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: 61 Registration of guardianship order relating to heritable property
p.000039: (1) This section applies where the sheriff makes a guardianship order which vests in the guardian any
p.000039: right of the adult to deal with, convey or manage any interest in heritable property which is recorded or is capable of
p.000039: being recorded in the General Register of Sasines or is registered or is capable of being registered in
p.000039: the Land Register of Scotland.
p.000039: (2) In making such an order the sheriff shall specify each property affected by the order, in such terms as enable
p.000039: it to be identified in the Register of Sasines or, as the case may be, the Land Register of Scotland.
p.000039: (3) The guardian shall, after finding caution if so required, forthwith apply to the Keeper of the Registers of
p.000039: Scotland for recording of the interlocutor containing the order in the General Register of Sasines or, as the
p.000039: case may be, registering of it in the Land Register of Scotland.
...
p.000039: (2) Joint guardians shall not be appointed to an adult unless—
p.000039: (a) the individuals so appointed are parents, siblings or children of the adult; or
p.000039: (b) the sheriff is satisfied that, in the circumstances, it is appropriate to appoint as joint
p.000039: guardians individuals who are not related to the adult as mentioned in paragraph (a).
p.000039:
p.000039: 40 Adults with Incapacity (Scotland) Act 2000
p.000039: (asp 4) Part 6—Intervention orders and guardianship orders
p.000039:
p.000039: (3) Where an application is made under subsection (1)(a), sections 58 and 59 shall apply for the purposes of the
p.000039: disposal of that application as they apply for the disposal of an application under section 57.
p.000039: (4) In deciding if an individual is suitable for appointment as additional guardian under subsection
p.000039: (1)(b), the sheriff shall have regard to the matters set out in section 59(3) to (5).
p.000039: (5) Where the sheriff appoints an additional guardian under this section, the sheriff clerk shall send a
p.000039: copy of the order appointing him to the Public Guardian who shall—
p.000039: (a) enter prescribed particulars in the register maintained by him under section 6(2) (b)(iv) of this Act;
p.000039: (b) when satisfied that the additional guardian has found caution if so required, issue a certificate of
p.000039: appointment to the additional guardian and a new certificate of appointment to the existing guardian;
p.000039: (c) notify the adult and the local authority and (in a case where the adult’s incapacity is by reason of, or reasons
p.000039: which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which
p.000039: include it) the Mental Welfare Commission.
p.000039: (6) Joint guardians may, subject to subsection (7), exercise their functions individually, and each guardian shall
p.000039: be liable for any loss or injury caused to the adult arising out of—
p.000039: (a) his own acts or omissions; or
p.000039: (b) his failure to take reasonable steps to ensure that a joint guardian does not breach any duty of care or
p.000039: fiduciary duty owed to the adult,
p.000039: and where more than one such guardian is so liable they shall be liable jointly and severally.
p.000039: (7) A joint guardian shall, before exercising any functions conferred on him, consult the other joint
p.000039: guardians, unless—
p.000039: (a) consultation would be impracticable in the circumstances; or
p.000039: (b) the joint guardians agree that consultation is not necessary.
p.000039: (8) Where joint guardians disagree as to the exercise of their functions, either or both of them may
p.000039: apply to the sheriff for directions under section 3.
p.000039: (9) Where there are joint guardians, a third party in good faith is entitled to rely on the
p.000039: authority to act of any one or more of them.
p.000039:
p.000039: 63 Substitute guardian
p.000039: (1) In any case where an individual is appointed as guardian under section 58 the sheriff may, on an
p.000039: application, appoint to act as guardian in the event of the guardian so appointed becoming unable to
p.000039: act any individual or office holder who could competently be appointed by virtue of section 59.
p.000039: (2) In this Act an individual appointed under section 58 and an individual or office holder appointed under this
p.000039: section are referred to respectively as an “original guardian” and a “substitute guardian”.
p.000039: (3) The appointment of a substitute guardian shall be for the same period as the appointment of the original
p.000039: guardian under section 58(4).
p.000039:
p.000039: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000041: 41
p.000041: Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: (4) An application for appointment as a substitute guardian may be made at the time of the application for the
p.000041: appointment of the original guardian or at any time thereafter.
p.000041: (5) In making an order appointing an individual as substitute guardian with powers relating to the property or
p.000041: financial affairs of the adult the sheriff shall, except where—
p.000041: (a) the individual is unable to find caution; but
p.000041: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed substitute guardian,
p.000041: require an individual appointed as substitute guardian to find caution.
p.000041: (6) Subsection (1) shall apply to an individual who, having been appointed as a substitute guardian subsequently,
p.000041: by virtue of this section, becomes the guardian as it applies to an individual appointed under section 58 and, for this
p.000041: purpose, any reference in this section to the “original guardian” shall be construed accordingly.
p.000041: (7) Where the sheriff appoints a substitute guardian (other than a substitute guardian appointed in
p.000041: the same order as an original guardian) under subsection (1), the sheriff clerk shall send a copy of the
p.000041: interlocutor containing the order appointing the substitute guardian to the Public Guardian who shall—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv); and
p.000041: (b) notify the adult, the original guardian and the local authority and (in a case where the adult’s incapacity is
p.000041: by reason of, or by reasons which include, mental disorder and the guardianship order relates to the
p.000041: adult’s personal welfare or factors which include it) the Mental Welfare Commission.
p.000041: (8) On the death or incapacity of the original guardian, the substitute guardian shall, without undue delay, notify
p.000041: the Public Guardian—
p.000041: (a) of the death or incapacity (and where the original guardian has died, provide the Public Guardian with
p.000041: documentary evidence of the death); and
p.000041: (b) whether or not he is prepared to act as guardian.
p.000041: (9) The Public Guardian on being notified under subsection (8) shall, if the substitute guardian is
p.000041: prepared to act—
p.000041: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000041: (b) when satisfied that the substitute guardian has found caution if so required, issue the substitute guardian with
p.000041: a certificate of appointment;
p.000041: (c) notify the adult, the original guardian, the local authority and (in a case where the adult’s incapacity is by
p.000041: reason of, or by reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000041: welfare or factors which include it) the Mental Welfare Commission that the substitute guardian is acting.
p.000041: (10) Unless otherwise specified in the order appointing him, the substitute guardian shall have the same
p.000041: functions and powers as those exercisable by the original guardian immediately before the event mentioned in
p.000041: subsection (1).
p.000041:
p.000041: 42 Adults with Incapacity (Scotland) Act 2000
p.000041: (asp 4) Part 6—Intervention orders and guardianship orders
p.000041:
p.000041: Functions etc. of guardian
p.000041: 64 Functions and duties of guardian
p.000041: (1) Subject to the provisions of this section, an order appointing a guardian may confer on him—
p.000041: (a) power to deal with such particular matters in relation to the property, financial affairs or personal
p.000041: welfare of the adult as may be specified in the order;
p.000041: (b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in
p.000041: the order;
p.000041: (c) power to pursue or defend an action of declarator of nullity of marriage, or of divorce or
p.000041: separation in the name of the adult;
p.000041: (d) power to manage the property or financial affairs of the adult, or such parts of them as may be
p.000041: specified in the order;
p.000041: (e) power to authorise the adult to carry out such transactions or categories of transactions as the
p.000041: guardian may specify.
p.000041: (2) A guardian may not—
p.000041: (a) place the adult in a hospital for the treatment of mental disorder against his will; or
p.000041: (b) consent on behalf of the adult to any form of treatment mentioned in section 48(1) or (2).
p.000041: (3) A guardian shall (unless prohibited by an order of the sheriff and subject to any conditions or
p.000041: restrictions specified in such an order) have power by virtue of his appointment to act as the adult’s legal
p.000041: representative in relation to any matter within the scope of the power conferred by the guardianship order.
p.000041: (4) The guardian shall not later than 7 days after any change of his own or the adult’s address
p.000041: notify the Public Guardian who shall—
p.000041: (a) notify the adult (in a case where it is the guardian’s address which has changed), the local authority and (in a
p.000041: case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the guardianship order
p.000041: relates to the adult’s personal welfare or factors which include it) the Mental Welfare Commission
p.000041: of the change; and
p.000041: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000041: (5) A guardian having powers relating to the property or financial affairs of the adult shall, subject to—
p.000041: (a) such restrictions as may be imposed by the court;
p.000041: (b) any management plan prepared under paragraph 1 of schedule 2; or
p.000041: (c) paragraph 6 of that schedule,
p.000041: be entitled to use the capital and income of the adult’s estate for the purpose of purchasing assets,
p.000041: services or accommodation so as to enhance the adult’s quality of life.
p.000041: (6) The guardian may arrange for some or all of his functions to be exercised by one or more persons
p.000041: acting on his behalf but shall not be entitled to surrender or transfer any part of them to another person.
p.000041:
p.000041: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000043: 43
p.000043: Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (7) The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or
p.000043: financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the
p.000043: guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect
p.000043: as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.
p.000043: (8) An interim guardian appointed under section 57(5) having powers relating to—
p.000043: (a) the property or financial affairs of an adult shall report to the Public Guardian;
p.000043: (b) the personal welfare of an adult shall report to the chief social work officer of the local authority,
p.000043: every month as to his exercise of those powers.
p.000043: (9) Where the chief social work officer of the local authority has been appointed guardian he shall, not later
p.000043: than 7 working days after his appointment, notify any person who received notification under section 58(7) of
p.000043: the appointment of the name of the officer responsible at any time for carrying out the functions and duties of
p.000043: guardian.
p.000043: (10) If, in relation to the appointment of the chief social work officer as guardian, the sheriff has directed that
p.000043: that intimation or notification of any application or other proceedings should not be given to the adult, the chief
p.000043: social work officer shall not notify the adult under subsection (9).
p.000043: (11) The Scottish Ministers may by regulations define the scope of the powers which may be conferred on a guardian
p.000043: under subsection (1) and the conditions under which they shall be exercised.
p.000043: (12) Schedule 2 (which makes provision as to the guardian’s management of the estate of an adult) has effect.
p.000043:
p.000043: 65 Records: guardians
p.000043: A guardian shall keep records of the exercise of his powers.
p.000043:
p.000043: 66 Gifts
p.000043: (1) A guardian having powers relating to the property or financial affairs of an adult may make a gift out of the
p.000043: adult’s estate only if authorised to do so by the Public Guardian.
p.000043: (2) Authorisation by the Public Guardian under subsection (1) may be given generally, or in respect of a particular
p.000043: gift.
p.000043: (3) On receipt of an application in the prescribed form for an authorisation to make a gift, the Public Guardian
...
p.000043: is not necessary, he may dispense with intimation.
p.000043: (5) Having heard any objections as mentioned in subsection (3), the Public Guardian may grant the application.
p.000043:
p.000043: 44 Adults with Incapacity (Scotland) Act 2000
p.000043: (asp 4) Part 6—Intervention orders and guardianship orders
p.000043:
p.000043: (6) Where the Public Guardian proposes to refuse the application he shall intimate his decision to the
p.000043: guardian and advise him of the prescribed period within which he may object to the refusal; and he shall not
p.000043: refuse the application without affording to the guardian, if he objects, an opportunity of being heard.
p.000043: (7) The Public Guardian may at his own instance or at the instance of the guardian or of any person who objects
p.000043: to the granting of the application remit the application for determination by the sheriff, whose
p.000043: decision shall be final.
p.000043: (8) A decision of the Public Guardian—
p.000043: (a) to grant an application under subsection (5) or to refuse an application; or
p.000043: (b) to refuse to remit an application to the sheriff under subsection (7), may be appealed to the sheriff, whose
p.000043: decision shall be final.
p.000043:
p.000043: 67 Effect of appointment and transactions of guardian
p.000043: (1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the
p.000043: scope of the authority conferred on the guardian except in a case where he has been authorised by the guardian
p.000043: under section 64(1)(e); but nothing in this subsection shall be taken to affect the capacity of the adult in
p.000043: relation to any other matter.
p.000043: (2) Where the guardian has powers relating to the property or financial affairs of the adult, the certificate of
p.000043: appointment issued to him by the Public Guardian shall, subject to the terms of the order appointing him, have the
p.000043: effect of—
p.000043: (a) authorising the guardian to take possession of, manage and deal with any moveable or immoveable estate
p.000043: (wherever situated) of the adult;
p.000043: (b) requiring any payment due to the adult to be made to the guardian,
p.000043: in so far as the estate, payment or matter falls within the scope of the guardian’s authority.
p.000043: (3) A guardian having powers relating to the personal welfare of an adult may exercise these powers in
p.000043: relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
p.000043: (4) The guardian shall be personally liable under any transaction entered into by him—
p.000043: (a) without disclosing that he is acting as guardian of the adult; or
p.000043: (b) which falls outwith the scope of his authority,
p.000043: but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this
p.000043: Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect
p.000043: of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.
p.000043: (5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the
p.000043: transaction that authority had been granted by the guardian under section 64(1)(e), the transaction shall not
p.000043: be void only on the ground that the adult lacked capacity.
p.000043: (6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith
p.000043: shall not be invalid on the ground only that—
p.000043: (a) the guardian acted outwith the scope of his authority; or
p.000043:
p.000043: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000045: 45
p.000045: Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act,
p.000045: or by the sheriff or by the Public Guardian; or
p.000045: (c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
p.000045: (7) In subsections (3) and (4) any reference to a guardian shall include a reference to a guardian
p.000045: (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an
p.000045: adult during his incapacity, if the guardianship is recognised by the law of Scotland.
p.000045:
p.000045: 68 Reimbursement and remuneration of guardian
p.000045: (1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays
p.000045: reasonably incurred by him in the exercise of his functions.
p.000045: (2) In subsection (1), “outlays”, in relation to a guardian—
p.000045: (a) who is someone other than the chief social work officer of a local authority, includes payment for
p.000045: items and services other than those items and services which the guardian is expected to provide as part of his
p.000045: functions;
p.000045: (b) who is the chief social work officer of a local authority, includes payment for items and services
p.000045: only if they would not normally be provided free of charge by the local authority to a person who is in similar
p.000045: circumstances but who does not have a guardian.
p.000045: (3) The local authority shall, in relation to the cost of any application by them for appointment of
p.000045: their chief social work officer as guardian or of any subsequent application by that officer while acting as
p.000045: guardian—
p.000045: (a) where the application relates to the personal welfare of the adult, meet such cost;
p.000045: (b) where the application relates to the property or financial affairs of the adult, be entitled to recover
p.000045: such cost from the estate of the adult,
p.000045: and where the application relates to the personal welfare and to the property or financial affairs of the adult the
p.000045: sheriff shall, in determining the application, apportion the cost as he thinks fit.
p.000045: (4) Remuneration shall be payable out of the adult’s estate—
p.000045: (a) in respect of the exercise of functions relating to the personal welfare of the adult, only in a case where
p.000045: special cause is shown;
p.000045: (b) in respect of the exercise of functions relating to the property or financial affairs of the adult, unless
p.000045: the sheriff directs otherwise in the order appointing the guardian,
p.000045: but shall not be payable to a local authority in respect of the exercise by their chief social work
p.000045: officer of functions relating to the personal welfare of the adult.
p.000045: (5) In determining whether or not to make a direction under subsection (4)(b), the sheriff shall take into account
p.000045: the value of the estate and the likely difficulty of managing it.
p.000045: (6) Any remuneration payable to the guardian and the amount of outlays to be allowed under subsection
p.000045: (1) shall be fixed by the Public Guardian—
p.000045: (a) in a case where the guardian is required to submit accounts, when the guardian’s accounts for that period are
p.000045: audited;
p.000045:
p.000045: 46 Adults with Incapacity (Scotland) Act 2000
p.000045: (asp 4) Part 6—Intervention orders and guardianship orders
p.000045:
p.000045: (b) in any other case, on an application by the guardian,
p.000045: and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the
p.000045: estate.
p.000045: (7) The Public Guardian may allow payments to account to be made by way of remuneration
p.000045: during the accounting period if it would be unreasonable to expect the guardian to wait for payment until
p.000045: the end of an accounting period.
p.000045: (8) A decision by the Public Guardian—
p.000045: (a) under subsection (6) as to the remuneration payable and the outlays allowable to the guardian;
p.000045: (b) under subsection (7) as to payments to account to the guardian may be appealed to the sheriff, whose decision
p.000045: shall be final.
p.000045:
...
p.000047: financial affairs of the adult or removing a guardian from office where there is a substitute guardian with such powers
p.000047: prepared to act as guardian, the sheriff shall, except where—
p.000047: (a) the individual or substitute guardian is unable to find caution; but
p.000047: (b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian or substitute guardian, as the
p.000047: case may be,
p.000047: require an individual appointed as guardian or the substitute guardian to find caution.
p.000047: (3) The Public Guardian on receiving a copy of the interlocutor under subsection (1) shall—
p.000047: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000047: (b) where the sheriff—
p.000047:
p.000047: 48 Adults with Incapacity (Scotland) Act 2000
p.000047: (asp 4) Part 6—Intervention orders and guardianship orders
p.000047:
p.000047: (i) replaces the guardian by the individual or office holder nominated in the application, when satisfied
p.000047: that, in the case of an individual, the individual has found caution if so required, issue him with a
p.000047: certificate of appointment;
p.000047: (ii) removes a guardian from office and a substitute guardian is prepared to act, when satisfied that the substitute
p.000047: guardian has found caution if so required, issue the substitute guardian with a certificate of appointment;
p.000047: (iii) removes a joint guardian from office and there is a joint guardian who is prepared to continue to act,
p.000047: issue a remaining joint guardian with a new certificate of appointment;
p.000047: (c) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000047: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000047: welfare or factors including it) the Mental Welfare Commission.
p.000047: (4) Where the sheriff recalls the guardianship order he may at the same time make an intervention
p.000047: order.
p.000047: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000047: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000047: his incapacity, if the guardianship is recognised by the law of Scotland; and “guardianship order” shall be construed
p.000047: accordingly.
p.000047:
p.000047: 72 Discharge of guardian with financial powers
p.000047: (1) At any time after—
p.000047: (a) the recall of a guardianship order appointing a guardian with powers relating to the property or financial
p.000047: affairs of an adult;
p.000047: (b) the resignation, removal or replacement of such a guardian; or
p.000047: (c) the death of the adult,
p.000047: the Public Guardian may, on an application by the former guardian or, if the former guardian has died,
p.000047: his representative, grant a discharge in respect of the former guardian’s actings and intromissions with the
p.000047: estate of the adult.
p.000047: (2) On receipt of an application in the prescribed form, the Public Guardian shall intimate the application to the
...
p.000047: shall be final.
p.000047:
p.000047: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000049: 49
p.000049: Part 6—Intervention orders and guardianship orders
p.000049:
p.000049: (6) A decision of the Public Guardian—
p.000049: (a) to grant a discharge under subsection (1) or to refuse a discharge;
p.000049: (b) to grant an application under subsection (3) or to refuse an application;
p.000049: (c) to refuse to remit an application to the sheriff under subsection (5) may be appealed to the sheriff, whose
p.000049: decision shall be final.
p.000049:
p.000049: 73 Recall of powers of guardian
p.000049: (1) The Public Guardian, at his own instance or on an application by any person (including the adult himself)
p.000049: claiming an interest in the property and financial affairs of an adult in respect of whom a guardian has been
p.000049: appointed, may recall the powers of a guardian relating to the property or financial affairs of the adult if it
p.000049: appears to him that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his property and financial affairs can be satisfactorily safeguarded or promoted
p.000049: otherwise than by guardianship.
p.000049: (2) Where the Public Guardian recalls the powers of a guardian under subsection (1) he shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult, the guardian and the local authority.
p.000049: (3) The Mental Welfare Commission or the local authority in whose area an adult in respect of whom a guardian has
p.000049: been appointed habitually resides (other than a local authority whose chief social work officer has been appointed
p.000049: guardian), at their own instance or on an application by any person (including the adult himself) claiming an interest
p.000049: in the personal welfare of the adult, may recall the powers of a guardian relating to the personal
p.000049: welfare of the adult if it appears to them that—
p.000049: (a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
p.000049: (b) the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than
p.000049: by guardianship.
p.000049: (4) Where the Mental Welfare Commission or the local authority recall the powers of a guardian under
p.000049: subsection (3) they shall notify the other and the Public Guardian who shall—
p.000049: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000049: (b) notify the adult and the guardian.
p.000049: (5) The Public Guardian, Mental Welfare Commission or local authority, as the case may be, shall—
p.000049: (a) where acting on an application, on receipt of the application in the prescribed form intimate it;
p.000049: (b) where acting at his or their own instance, intimate the intention to recall the powers of a
p.000049: guardian,
p.000049:
p.000049: 50 Adults with Incapacity (Scotland) Act 2000
p.000049: (asp 4) Part 6—Intervention orders and guardianship orders
p.000049:
p.000049: to the adult, his nearest relative, his primary carer and any person who he or they consider has an
p.000049: interest in the recall of the powers and advise them of the prescribed period within which they may object to such
p.000049: recall; and he or they shall not recall the powers without affording to any objector an opportunity of being heard.
p.000049: (6) Having heard any objections as mentioned in subsection (5) the Public Guardian, Mental Welfare Commission or
p.000049: local authority may recall the powers of a guardian.
p.000049: (7) Where the Public Guardian, Mental Welfare Commission or local authority proposes or propose to refuse the
p.000049: application he or they shall intimate the decision to the applicant and the adult and advise them of the prescribed
p.000049: period within which they may object to the refusal; and he or they shall not refuse the application without
p.000049: affording to the applicant or the adult, if he objects, an opportunity of being heard.
p.000049: (8) The Public Guardian, Mental Welfare Commission or local authority may at his or their own instance or at the
p.000049: instance of an applicant or of any person who objects to the recall of the powers of the guardian remit the matter for
p.000049: determination by the sheriff whose decision shall be final.
p.000049: (9) A decision of—
p.000049: (a) the Public Guardian, Mental Welfare Commission or local authority to recall the powers of a guardian under
p.000049: subsection (6);
p.000049: (b) the Public Guardian, Mental Welfare Commission or local authority to remit or not to remit the matter to
p.000049: the sheriff under subsection (8),
p.000049: may be appealed to the sheriff, whose decision shall be final, and the decision of the Public Guardian, Mental
p.000049: Welfare Commission or local authority as to the recall of the powers of a guardian shall remain in force pending the
p.000049: final determination of the appeal.
p.000049: (10) The Scottish Ministers may prescribe the forms and procedure for the purposes of any recall of guardianship
p.000049: powers by the Mental Welfare Commission or the local authority.
p.000049:
p.000049: 74 Variation of guardianship order
p.000049: (1) The sheriff, on an application by any person (including the adult himself) claiming an interest in the
p.000049: property, financial affairs or personal welfare of the adult, may vary the powers conferred by the guardianship order
p.000049: and may vary any existing ancillary order.
p.000049: (2) In varying powers relating to the property or financial affairs of the adult conferred by the guardianship
p.000049: order or in varying any ancillary order in relation to such powers the sheriff shall, except where—
p.000049: (a) the guardian is unable to find caution; but
p.000049: (b) the sheriff is satisfied that nevertheless it is appropriate to vary the powers conferred by the
p.000049: guardianship order or to vary the ancillary order,
p.000049: require the guardian to find caution.
p.000049: (3) In considering an application under subsection (1), the sheriff shall have regard to any intervention order
p.000049: or guardianship order which may have been previously made in relation to the adult or any other order varying
p.000049: such an order, and to any order ancillary to such an order.
p.000049: (4) Notwithstanding subsection (1), an application which seeks to vary the powers conferred by a guardianship order
p.000049: or to vary an ancillary order so that—
p.000049:
p.000049: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000051: 51
p.000051: Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (a) a guardian, appointed only in relation to the personal welfare of an adult, shall be appointed also or instead
p.000051: in relation to the property or financial affairs of the adult; or
p.000051: (b) a guardian, appointed only in relation to the property or financial affairs of an adult, shall be
p.000051: appointed also or instead in relation to the personal welfare of the adult;
p.000051: shall be made under section 57.
p.000051: (5) Where the sheriff varies the powers conferred by a guardianship order or varies an ancillary order
p.000051: under this section, the sheriff clerk shall send a copy of the interlocutor containing the order to the Public Guardian
p.000051: who shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000051: (b) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of,
p.000051: or reasons which include, mental disorder and the guardianship order relates to the adult’s personal
p.000051: welfare or factors including it) the Mental Welfare Commission; and
p.000051: (c) if he is satisfied that the guardian has caution, if so required, which covers the varied order,
p.000051: issue a new certificate of appointment where necessary.
p.000051:
p.000051: 75 Resignation of guardian
p.000051: (1) A joint guardian, or a guardian in respect of whom a substitute guardian has been appointed, may
p.000051: resign by giving notice in writing of his intention to do so to the Public Guardian and the local authority and (in a
p.000051: case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship
p.000051: order relates to the adult’s personal welfare or factors including it) the Mental Welfare Commission.
p.000051: (2) The resignation of a guardian as mentioned in subsection (1)—
p.000051: (a) shall not take effect unless—
p.000051: (i) the remaining joint guardian is willing to continue to act; or
p.000051: (ii) the substitute guardian is willing to act;
p.000051: (b) shall take effect on the receipt by the Public Guardian of notice in writing under subsection (1) together
p.000051: with evidence as to the matters contained in paragraph (a)(i) or (ii).
p.000051: (3) On receiving notice in writing and evidence as mentioned in subsection (2)(b), the Public Guardian
p.000051: shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
p.000051: (b) if satisfied that the substitute guardian has found caution if so required, issue him with a new certificate of
p.000051: appointment;
p.000051: (c) issue a remaining joint guardian with a new certificate of appointment;
p.000051: (d) notify the adult.
p.000051:
p.000051: 52 Adults with Incapacity (Scotland) Act 2000
p.000051: (asp 4) Part 6—Intervention orders and guardianship orders
p.000051:
p.000051: (4) A substitute guardian who has not subsequently become guardian by virtue of section 63 may resign by giving
p.000051: notice in writing to the Public Guardian and the local authority and (in the case mentioned in subsection (1))
p.000051: the Mental Welfare Commission and the resignation shall take effect on the date of receipt of the notice by the
p.000051: Public Guardian; and on its becoming effective, the Public Guardian shall—
p.000051: (a) notify the guardian and the adult; and
p.000051: (b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).
p.000051: (5) A guardian—
p.000051: (a) who has no joint guardian; or
p.000051: (b) in respect of whom no substitute guardian has been appointed; or
p.000051: (c) being a joint guardian or guardian in respect of whom a substitute has been appointed who cannot
p.000051: effectively resign by reason of subsection (2)(a)(i) or (ii),
p.000051: shall not resign until a replacement guardian has been appointed under section 71.
p.000051:
p.000051: 76 Change of habitual residence
p.000051: (1) Where the guardian is the chief social work officer of the local authority and the adult changes his place of
p.000051: habitual residence to the area of another local authority, the chief social work officer of the first mentioned
p.000051: local authority shall notify the chief social work officer of the second mentioned local authority (the
p.000051: “receiving authority”) who shall become guardian on receipt of the notification and shall within 7 days
p.000051: of that receipt notify the Public Guardian and (in a case where the incapacity of the adult is by reason of, or
p.000051: reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or
p.000051: factors which include it) the Mental Welfare Commission.
p.000051: (2) The Public Guardian shall—
p.000051: (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv) and issue a
p.000051: certificate of appointment to the new guardian; and
p.000051: (b) subject to subsection (4), notify the adult within 7 days of receipt of the notification from the
p.000051: receiving authority.
p.000051: (3) Subject to subsection (4), the chief social work officer of the receiving authority shall, within 7 working
p.000051: days of receipt of the notification, notify any person who received notification under section 58(7)
p.000051: of the appointment of the name of the officer responsible at any time for carrying out the functions and
p.000051: duties of guardian.
p.000051: (4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation
p.000051: or notification of any application or other proceedings should not be given to the adult, the Public
p.000051: Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may
p.000051: be.
p.000051:
p.000051: Termination of authority to intervene and guardianship on death of adult
p.000051: 77 Termination of authority to intervene and guardianship on death of adult
p.000051: (1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect
p.000051: on his death.
p.000051:
p.000051: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000053: 53
p.000053: Part 6—Intervention orders and guardianship orders
p.000053:
p.000053: (2) A person authorised under an intervention order or a guardian having powers relating to the property or
p.000053: financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event
p.000053: which has the effect of terminating his authority, be entitled to act under those powers if he acts in good
p.000053: faith.
p.000053: (3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint
p.000053: guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority
p.000053: of the person or guardian if he is unaware of the termination or ending of that authority.
p.000053: (4) No title to any interest in heritable property acquired by a third party in good faith and for value from a
p.000053: person authorised under an intervention order or from a guardian having powers relating to the property
p.000053: or financial affairs of the adult shall be challengeable on the grounds only of the termination or
p.000053: coming to an end of the authority of the person or of the guardian.
p.000053: (5) In this section any reference to a guardian shall include a reference to a guardian (however
p.000053: called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during
p.000053: his incapacity, if the guardianship is recognised by the law of Scotland.
p.000053:
p.000053: 78 Amendment of registration under section 61 on events affecting guardianship or death of adult
p.000053: (1) The Public Guardian shall—
p.000053: (a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by
p.000053: him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the
p.000053: appointment of the guardian was recorded or registered under section 61; or
p.000053: (b) where an adult in respect of whom there was such a guardianship order has died,
p.000053: apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other
p.000053: document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the
p.000053: case may be, the registering of the event or the death in the Land Register of Scotland.
p.000053: (2) On an application under subsection (1), the Keeper shall, as appropriate—
p.000053: (a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has
p.000053: been so recorded;
p.000053: (b) update the title sheet of the heritable property accordingly.
p.000053:
p.000053: 79 Protection of third parties: guardianship
p.000053: Where a third party has acquired, in good faith and for value, title to any interest in heritable
p.000053: property from a guardian that title shall not be challengeable on the ground only—
p.000053: (a) of any irregularity of procedure in making the guardianship order; or
p.000053: (b) that the guardian has acted outwith the scope of his authority.
p.000053:
p.000053: 54 Adults with Incapacity (Scotland) Act 2000
p.000053: (asp 4) Part 7—Miscellaneous
p.000053:
p.000053: PART 7
p.000053: MISCELLANEOUS
p.000053: 80 Future appointment of curator bonis etc. incompetent
p.000053: In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis,
p.000053: tutor-dative or tutor-at-law to a person who has attained the age of 16 years.
p.000053:
p.000053: 81 Repayment of funds
p.000053: (1) Where—
p.000053: (a) a continuing attorney;
p.000053: (b) a welfare attorney;
p.000053: (c) a withdrawer;
p.000053: (d) a guardian;
p.000053: (e) a person authorised under an intervention order; or
p.000053: (f) the managers of an authorised establishment within the meaning of Part 4,
p.000053: uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or
p.000053: power to intervene in the affairs of the adult or after having received intimation of the termination or
p.000053: suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest
p.000053: thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.
p.000053: (2) Subsection (1) shall be without prejudice to sections 69 and 82.
p.000053:
p.000053: 82 Limitation of liability
p.000053: (1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised
p.000053: under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of
p.000053: care or fiduciary duty owed to the adult if he has or they have—
p.000053: (a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or
p.000053: (b) failed to act and the failure was reasonable and in good faith and in accordance with the said general
p.000053: principles.
p.000053: (2) In this section any reference to—
p.000053: (a) a guardian shall include a reference to a guardian (however called) appointed under the law of any
p.000053: country to, or entitled under the law of any country to act for, an adult during his incapacity, if the
p.000053: guardianship is recognised by the law of Scotland;
p.000053: (b) a continuing attorney shall include a reference to a person granted, under a contract, grant or
p.000053: appointment governed by the law of any country, powers (however expressed), relating to the granter’s
...
p.000055: (b) may appoint a joint guardian;
p.000055: (c) may appoint a substitute guardian;
p.000055: (d) may make such consequential or ancillary order, provision or direction as it considers appropriate.
p.000055: (3) Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the
p.000055: court may—
p.000055:
p.000055: 56 Adults with Incapacity (Scotland) Act 2000
p.000055: (asp 4) Part 7—Miscellaneous
p.000055:
p.000055: (a) make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate;
p.000055: (b) order that any reports relating to the person who will be the subject of the order be lodged with the court
p.000055: or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;
p.000055: (c) make such further inquiry or call for such further information as appears to it to be appropriate;
p.000055: (d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings.
p.000055: (4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the
p.000055: order to the Public Guardian who shall—
p.000055: (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of
p.000055: the 2000 Act;
p.000055: (b) unless he considers that the notification would be likely to pose a serious risk to the person’s health
p.000055: notify the person of the appointment of the guardian; and
p.000055: (c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.
p.000055: (5) A guardianship order shall continue in force for a period of 3 years or such other period
p.000055: (including an indefinite period) as, on cause shown, the court may determine.
p.000055: (6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or
p.000055: 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84
p.000055: of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be
p.000055: determined in accordance with this Act as it was immediately in force before that date.”.
p.000055:
p.000055: 85 Jurisdiction and private international law
p.000055: Schedule 3 shall have effect for the purposes of defining the jurisdiction, in respect of adults who are incapable
p.000055: within the meaning of this Act, of the Scottish judicial and administrative authorities and for making
p.000055: provision as to the private international law of Scotland in that respect.
p.000055:
p.000055: 86 Regulations
p.000055: (1) Any power of the Scottish Ministers to make regulations under this Act shall be exercisable by
p.000055: statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
p.000055: (2) Any such power may be exercised to make different provision for different cases or classes of case
p.000055: and includes power to make such incidental, supplemental, consequential or transitional provision or savings as appear
p.000055: to the Scottish Ministers to be appropriate.
p.000055:
p.000055: 87 Interpretation
p.000055: (1) In this Act, unless the context otherwise requires—
p.000055:
p.000055: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000057: 57
p.000057: Part 7—Miscellaneous
p.000057:
p.000057: “adult” shall be construed in accordance with section 1;
p.000057: “continuing attorney” shall be construed in accordance with section 15; “guardianship order” shall be construed in
p.000057: accordance with section 58; “incapable” and “incapacity” shall be construed in accordance with section 1; “intervention
p.000057: order” shall be construed in accordance with section 53;
p.000057: “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act
p.000057: 1994 (c.39), and references to a local authority shall be construed as references to the local authority
p.000057: for the area in which the adult resides;
p.000057: “managers of an establishment” shall be construed in accordance with schedule 1;
p.000057: “mental disorder” means mental illness (including personality disorder) or mental handicap however caused or
p.000057: manifested; but an adult shall not be treated as suffering from mental disorder by reason only of
p.000057: promiscuity or other immoral conduct, sexual deviancy, dependence on alcohol or drugs, or acting as no prudent person
p.000057: would act;
p.000057: “Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by
p.000057: section 2 of the 1984 Act;
p.000057: “nearest relative” means, subject to subsection (2), the person who would be, or would be exercising the functions of,
p.000057: the adult’s nearest relative under sections 53 to 57 of the 1984 Act if the adult were a patient within the meaning of
p.000057: that Act and notwithstanding that the person neither is nor was caring for the adult for the purposes of section 53(3)
p.000057: of that Act;
p.000057: “office holder”, in relation to a guardian, means the chief social work officer of the local authority;
p.000057: “person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public
p.000057: Guardian;
p.000057: “power of attorney” includes a factory and commission;
p.000057: “prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public
p.000057: Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;
p.000057: “primary carer” in relation to an adult, means the person or organisation primarily engaged in caring for him;
p.000057: “Public Guardian” shall be construed in accordance with section 6;
p.000057: “State hospital” shall be construed in accordance with section 102 of the National Health Service (Scotland) Act 1978
p.000057: (c.29);
p.000057: “substitute guardian” shall be construed in accordance with section 63; “welfare attorney” shall be construed in
p.000057: accordance with section 16; “withdrawer” shall be construed in accordance with section 26;
p.000057: “the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).
p.000057: (2) Where—
p.000057: (a) an adult has no spouse or has a spouse but subsection (3) applies; and
p.000057: (b) a person of the same sex as the adult—
p.000057:
p.000057: 58 Adults with Incapacity (Scotland) Act 2000
p.000057: (asp 4) Part 7—Miscellaneous
p.000057:
p.000057: (i) is and has been, for a period of not less than 6 months, living with the adult in a relationship which has the
p.000057: characteristics, other than that the persons are of the opposite sex, of the relationship between husband and wife; or
p.000057: (ii) if the adult is for the time being an in-patient in a hospital, had so lived with the adult until
...
p.000057:
p.000057: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000059: 59
p.000059: Schedule 1—Managers of an establishment
p.000059:
p.000059: SCHEDULE 1
p.000059: (introduced by section 35)
p.000059: MANAGERS OF AN ESTABLISHMENT
p.000059: 1 For the purposes of Part 4 “the managers” of an establishment means—
p.000059: (a) in relation to a hospital vested in the Scottish Ministers under the National Health Service (Scotland) Act
p.000059: 1978 (c.29), the Health Board responsible for the administration of that hospital;
p.000059: (b) in relation to a hospital managed by a National Health Service trust established under section 12A of the
p.000059: said Act of 1978, the directors of the trust;
p.000059: (c) in relation to a State hospital—
p.000059: (i) the Scottish Ministers; or
p.000059: (ii) if a State Hospital Management Committee has been appointed to manage that hospital, that
p.000059: Committee; or
p.000059: (iii) if the management of that hospital has been delegated to a Health Board, to a Special Health Board, to
p.000059: a National Health Service trust or to the Common Services Agency for the Scottish Health Service, that Board,
p.000059: trust or Agency, as the case may be, or any person appointed by the Board, trust or agency, as the case may be, to
p.000059: manage the hospital;
p.000059: (d) in relation to a private hospital registered under Part IV of the 1984 Act and an unregistered hospital, the
p.000059: person or persons carrying on the hospital or any other person appointed by that person or persons to manage the
p.000059: hospital;
p.000059: (e) in relation to a residential establishment provided by a local authority under section 59 of the
p.000059: Social Work (Scotland) Act 1968 (c.49), the local authority or any person appointed by the local authority to manage
p.000059: the establishment;
p.000059: (f) in relation to an establishment in respect of which there is registration under section 62 or 63 of
p.000059: the said Act of 1968, the person registered in respect of it or any person appointed by that person to manage the
p.000059: establishment provided that the person so appointed has been named in the application for registration
p.000059: as a person who may be so appointed;
p.000059: (g) in relation to a nursing home in respect of which there is registration under the Nursing Homes
p.000059: Registration (Scotland) Act 1938 (c.73), the person registered in respect of it or any person appointed by that person
p.000059: to manage the nursing home provided that the person so appointed has been named in the application as a
p.000059: person who may be so appointed.
p.000059: 2 The Scottish Ministers may by regulations amend the list of managers in paragraph 1.
p.000059:
p.000059: 60 Adults with Incapacity (Scotland) Act 2000
p.000059: (asp 4) Schedule 2—Management of estate of adult
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059:
p.000059: Management plan
p.000059: SCHEDULE 2
p.000059: (introduced by section 64)
p.000059: MANAGEMENT OF ESTATE OF ADULT
p.000059: 1 (1) A guardian with powers relating to the property and financial affairs of the adult shall, unless the
p.000059: sheriff otherwise directs, prepare a plan (a “management plan”), taking account of any directions given
p.000059: by the sheriff in the order appointing him, for the management, investment and realisation of the adult’s
p.000059: estate and for the application of the estate to the adult’s needs, so far as the estate falls within the guardian’s
p.000059: authority.
p.000059: (2) The management plan shall be submitted in draft by the guardian to the Public Guardian for his approval, along
p.000059: with the inventory of the adult’s estate prepared under paragraph 3, not more than one month, or such other
p.000059: period as the Public Guardian may allow, after the submission of the inventory.
p.000059: (3) The Public Guardian may approve the management plan submitted to him under sub- paragraph (2) or he may
p.000059: approve it with amendments and the plan as so approved or as so amended shall be taken account of by the guardian in
p.000059: the exercise of his functions in relation to the adult.
p.000059: (4) Before the management plan is approved, the guardian shall, unless the sheriff on appointing him
p.000059: has conferred wider powers, have power only to—
p.000059: (a) ingather and take control of the assets of the adult’s estate so as to enable him, when the management plan
p.000059: has been approved, to intromit with them;
p.000059: (b) make such payments as are necessary to provide for the adult’s day to day needs.
p.000059: (5) The Public Guardian may authorise the guardian to exercise any function within the scope of his
p.000059: authority before the management plan is approved, if it would be unreasonable to delay him exercising that
p.000059: function until the plan had been approved.
p.000059: (6) The guardian shall keep the management plan under review and shall put forward to the Public Guardian
p.000059: proposals for variation of it whenever it appears to him to be appropriate.
p.000059: (7) The Public Guardian—
p.000059: (a) may at any time propose any variation to the management plan; and
p.000059: (b) shall review the plan whenever the guardian submits his accounts for audit.
p.000059: (8) The Public Guardian shall notify the guardian of any variation which he proposes to make to the
p.000059: management plan and shall not make any such variation without affording the guardian an opportunity to object.
p.000059: (9) Having heard any objections by the guardian as mentioned in sub-paragraph (8) the Public Guardian
p.000059: may make the variation with or without amendment.
p.000059: Directions from sheriff
p.000059: 2 Where the guardian disagrees with any decision made by the Public Guardian in relation to a management
p.000059: plan prepared under paragraph 1, he may apply to the sheriff for a determination in relation to the matter
p.000059: and the sheriff’s decision shall be final.
p.000059:
p.000059: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000061: 61
p.000061: Schedule 2—Management of estate of adult
p.000061:
p.000061: Inventory of estate
p.000061: 3 (1) A guardian with powers relating to the property or financial affairs of the adult shall, as soon after his
p.000061: appointment as possible and in any event within 3 months of the date of registration of his appointment or such other
p.000061: period as the Public Guardian may allow, submit to the Public Guardian for examination and approval a full
p.000061: inventory of the adult’s estate in so far as it falls within the scope of the guardian’s authority, along with such
p.000061: supporting documents and additional information as the Public Guardian may require.
p.000061: (2) The inventory shall be in a form, and contain information, prescribed by the Public Guardian.
p.000061: (3) Errors in and omissions from the inventory which are discovered by the guardian after the inventory has been
p.000061: approved by the Public Guardian shall be notified by him to the Public Guardian within 6 months of the date of
p.000061: discovery or when submitting his next accounts to the Public Guardian, whichever occurs sooner.
p.000061: (4) The Public Guardian may dispense with the need for the guardian to submit an inventory under sub-paragraph
p.000061: (1) or may require the guardian to take such other action as he thinks appropriate in lieu of submitting an
p.000061: inventory.
p.000061: Money
p.000061: 4 The guardian shall deposit all money received by him as guardian in a bank or a building
p.000061: society in an account in the name of the adult and shall ensure that all sums in excess of £500 (or such other sum as
p.000061: may be prescribed) so deposited shall earn interest.
p.000061: Powers relating to investment and carrying on of business by guardian
p.000061: 5 (1) Subject to the following provisions of this paragraph, a guardian with powers relating to the property or
p.000061: financial affairs of the adult shall be entitled—
p.000061: (a) after obtaining and considering proper advice, to retain any existing investment of the adult;
p.000061: (b) to use the adult’s estate to make new investments in accordance with the management plan prepared
p.000061: under paragraph 1 or with the consent of the Public Guardian.
...
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063:
p.000063: General
p.000063: SCHEDULE 3
p.000063: (introduced by section 85)
p.000063: JURISDICTION AND PRIVATE INTERNATIONAL LAW
p.000063: 1 (1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application
p.000063: or other proceedings and otherwise carry out functions under this Act in relation to an adult if—
p.000063: (a) the adult is habitually resident in Scotland; or
p.000063: (b) property which is the subject of the application or proceedings or in respect of which functions are
p.000063: carried out under this Act is in Scotland; or
p.000063: (c) the adult, although not habitually resident in Scotland is there or property belonging to the adult
p.000063: is there and, in either case, it is a matter of urgency that the application is or the proceedings are dealt with; or
p.000063: (d) the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary
p.000063: nature and its effect limited to Scotland.
p.000063: (2) As from the ratification date, the Scottish judicial and administrative authorities shall, in addition to the
p.000063: jurisdiction mentioned in sub-paragraph (1) in the circumstances set out therein, have the jurisdiction
p.000063: mentioned in that sub-paragraph in the following circumstances—
p.000063: (a) the adult—
p.000063: (i) is a British citizen; and
p.000063: (ii) has a closer connection with Scotland than with any other part of the United Kingdom; and
p.000063: (b) Article 7 of the Convention has been complied with,
p.000063: or if the Scottish Central Authority, having received a request under Article 8 of the Convention from an
p.000063: authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as
p.000063: would, under this Act, have functions in relation to the adult, have agreed to the request.
p.000063:
p.000063: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000065: 65
p.000065: Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (3) As from the ratification date, the provisions of the Convention shall apply to the exercise of
p.000065: jurisdiction under this schedule where the adult—
p.000065: (a) is habitually resident in a Contracting State other than the United Kingdom; or
p.000065: (b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a
p.000065: Contracting State.
p.000065: (4) As from the ratification date, any application made to a Scottish judicial or
p.000065: administrative authority under this Act which—
p.000065: (a) relates to an adult who is not habitually resident in Scotland; and
p.000065: (b) does not require to be determined as a matter of urgency,
p.000065: shall be accompanied by information as to which State the adult habitually resides in and as to any other
p.000065: application relating to the adult which has been dealt with or is being made, or proceedings so relating which
p.000065: have been or are being brought, in any Contracting State other than the United Kingdom.
p.000065: (5) For the purposes of this paragraph, an adult—
p.000065: (a) whose habitual residence cannot be ascertained; or
p.000065: (b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual
p.000065: residence,
p.000065: shall be taken to be habitually resident in the State which he is in.
p.000065: Appropriate sheriff
p.000065: 2 (1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose
p.000065: sheriffdom—
p.000065: (a) in relation to a case falling within paragraph 1(1)(a), the adult is habitually resident;
p.000065: (b) in relation to a case falling within paragraph 1(1)(b), the property is located;
p.000065: (c) in relation to a case falling within paragraph 1(1)(c), the adult or property belonging to the adult
p.000065: is present;
p.000065: (d) in relation to a case falling within paragraph 1(1)(d), the adult is present.
p.000065: (2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship
p.000065: order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial
p.000065: or administrative authorities, jurisdiction; and—
p.000065: (a) no other court or authority has jurisdiction; or
p.000065: (b) another court or authority has jurisdiction but—
p.000065: (i) it would be unreasonable to expect an applicant to invoke it; or
p.000065: (ii) that court or authority has declined to exercise it.
p.000065: (3) Notwithstanding that any other judicial or administrative authority has jurisdiction under sub-paragraph (1)(a)
p.000065: to take measures, a sheriff shall have jurisdiction to take measures if—
p.000065: (a) the adult is present in the sheriffdom; and
p.000065: (b) the sheriff considers that it is necessary, in the interests of the adult, to take the measures immediately.
p.000065:
p.000065: 66 Adults with Incapacity (Scotland) Act 2000
p.000065: (asp 4) Schedule 3—Jurisdiction and private international law
p.000065:
p.000065: (4) Where, by operation of paragraph 1, jurisdiction falls to be exercised by a sheriff but the case is one
p.000065: appearing to fall outside sub-paragraphs (1) and (2), the sheriff having jurisdiction is the Sheriff of the
p.000065: Lothians and Borders at Edinburgh.
p.000065: Applicable law
p.000065: 3 (1) The law applicable to anything done under this Act by a Scottish judicial or
p.000065: administrative authority in relation to an adult is the law of Scotland.
p.000065: (2) Sub-paragraph (1) does not prevent a Scottish judicial or administrative authority from applying the law
p.000065: of a country other than Scotland if, in circumstances which demonstrate a substantial connection with
p.000065: that other country and having regard to the interests of the adult, it appears appropriate to do so.
p.000065: (3) Such an authority shall, however, in the exercise of the powers conferred by section 18 of this Act, take into
p.000065: consideration to the extent possible the law which, as provided in paragraph 4, governs the power of attorney.
p.000065: (4) Where a measure for the protection of an adult has been taken in one State and is implemented
p.000065: in another, the conditions of its implementation are governed by the law of that other State.
p.000065: (5) Any question whether a person has authority by virtue of any enactment or rule of law to represent an adult
p.000065: shall be governed—
p.000065: (a) where such representation is for the purposes of the immediate personal welfare of the adult and the adult is in
p.000065: Scotland, by the law of Scotland; and
p.000065: (b) in any other case, by the law of the country in which the adult is habitually resident.
p.000065: 4 (1) The law governing the existence, extent, modification and extinction of continuing or welfare powers
p.000065: of attorney (including like powers, however described) shall be that of the State in which the granter habitually
p.000065: resided at the time of the grant of these powers.
p.000065: (2) Where, however, the granter of such a power of attorney so provides in writing, the law so applicable shall
p.000065: instead be the law of a State—
p.000065: (a) of which the granter is a national;
p.000065: (b) in which the granter was habitually resident before the grant; or
p.000065: (c) in which the property of the granter is located.
p.000065: (3) The manner of exercise of such a power shall be governed by the law of the State in which its exercise takes
p.000065: place.
p.000065: (4) The law of a State may be applied under sub-paragraph (2)(c) above only in respect of the property referred to
p.000065: in that provision.
p.000065: (5) Nothing in sub-paragraphs (1) and (2) prevents the sheriff from exercising powers under section 20 of this Act
...
p.000065: that other country.
p.000065:
p.000065: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000067: 67
p.000067: Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (8) Sub-paragraph (6) applies only if the persons entering into the contract or other transaction were,
p.000067: when they did so, both (or all) in the same country.
p.000067: 5 Nothing in this schedule displaces any enactment or rule of law which has mandatory effect for the
p.000067: protection of an adult with incapacity in Scotland whatever law would otherwise be applicable.
p.000067: 6 Nothing in this schedule requires or enables the application in Scotland of any provision of the law of a
p.000067: country other than Scotland so as to produce a result which would be manifestly contrary to public policy.
p.000067: Recognition and enforcement
p.000067: 7 (1) Any measure taken under the law of a country other than Scotland for the personal welfare or
p.000067: the protection of property of an adult with incapacity shall, if one of the conditions specified in
p.000067: sub-paragraph (2) is met, be recognised by the law of Scotland.
p.000067: (2) These conditions are—
p.000067: (a) that the jurisdiction of the authority of the other country was based on the adult’s habitual residence there;
p.000067: (b) that the United Kingdom and the other country were, when the measure was taken, parties to the
p.000067: Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided
p.000067: for in the Convention.
p.000067: (3) Recognition of a measure may, however, be refused—
p.000067: (a) if, except in a case of urgency—
p.000067: (i) the authority which took it did so without the adult to whom it related being given an opportunity to be
p.000067: heard; and
p.000067: (ii) these circumstances constituted a breach of natural justice;
p.000067: (b) if it would be manifestly contrary to public policy to recognise the measure;
p.000067: (c) if the measure conflicts with any enactment or rule of law of Scotland which is mandatory whatever law would
p.000067: otherwise be applicable;
p.000067: (d) if the measure is incompatible with a later measure taken in Scotland or recognised by the law of
p.000067: Scotland;
p.000067: (e) if the measure would have the effect of placing the adult in an establishment in Scotland and—
p.000067: (i) the Scottish Central Authority has not previously been provided with a report on the adult and a
p.000067: statement of the reasons for the proposed placement and has not been consulted on the proposed placement; or
p.000067: (ii) where the Authority has been provided with such a report and statement and so consulted, it has, within a
p.000067: reasonable time thereafter, declared that it disapproves of the proposed placement.
p.000067: 8 (1) A measure which is enforceable in the country of origin and which is recognised under paragraph 7 by the
p.000067: law of Scotland may, in accordance with rules of court, be registered.
p.000067: (2) A measure so registered shall be as enforceable as a measure having the like effect granted by a
p.000067: court in Scotland.
p.000067: 9 (1) For the purposes of recognition or enforcement of a measure taken outside Scotland in relation to an adult,
p.000067: findings of fact going to jurisdiction made by the authority taking the measure are conclusive of the facts found.
p.000067:
p.000067: 68 Adults with Incapacity (Scotland) Act 2000
p.000067: (asp 4) Schedule 3—Jurisdiction and private international law
p.000067:
p.000067: (2) The validity or merits of a measure falling to be recognised by the law of Scotland by virtue of this
p.000067: schedule shall not be questioned in any proceedings except for the purposes of ascertaining its compliance
p.000067: with any provision of this schedule.
p.000067: 10 (1) The Scottish Ministers may, by order, provide for the recognition and enforcement of orders made and other
p.000067: measures taken by authorities in any part of the United Kingdom other than Scotland.
p.000067: (2) The provision so made shall accord no less recognition and secure that these orders and measures are no less
p.000067: enforceable than if they were measures which are recognised by the law of Scotland under paragraph 7.
p.000067: Co-operation, avoidance of conflict of jurisdiction and compliance with the Convention
p.000067: 11 (1) Her Majesty may by Order in Council confer on the Scottish Central Authority, and the Scottish judicial and
p.000067: administrative authorities such powers, and impose on them such duties additional, in each case, to those which they
p.000067: have under this Act, as are necessary or expedient to enable them to give effect in Scotland to the Convention on and
p.000067: after the ratification date.
p.000067: (2) An Order in Council under sub-paragraph (1) shall be subject to annulment in pursuance of a resolution of the
p.000067: Scottish Parliament.
p.000067: (3) A certificate delivered in pursuance of Article 38 of the Convention by a designated authority of a
p.000067: Contracting State other than Scotland shall be proof of the matters stated in it unless the contrary is proved.
p.000067: General
p.000067: 12 No provision of this schedule deriving from or giving effect to the Convention extends to any matter to
p.000067: which the Convention, by Article 4 thereof, does not apply.
p.000067: 13 Orders or regulations under this schedule shall be made by statutory instrument subject to annulment in
p.000067: pursuance of a resolution of the Scottish Parliament.
p.000067: 14 In this schedule—
p.000067: “the Convention” means the Hague Convention of 13 January 2000 on the International Protection of Adults;
p.000067: a “measure for the personal welfare or protection of the property” of an adult with incapacity includes any order,
p.000067: direction or decision effecting or relating to—
p.000067: (a) the determination of the incapacity and the institution of appropriate measures of protection;
p.000067: (b) the placing of the adult under the protection of a judicial or administrative authority;
p.000067: (c) guardianship, curatorship or analogous institutions;
p.000067: (d) the appointment and functions of any person or body having charge of the adult’s person or property or otherwise
p.000067: representing the adult;
p.000067: (e) the placement of the adult in an establishment or other place where the personal welfare of the
p.000067: adult is safeguarded;
p.000067: (f) the administration, conservation or disposal of the adult’s property; or
p.000067: (g) the authorisation of a specific intervention for the personal welfare or protection of the property of
p.000067: the adult;
p.000067:
p.000067: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000069: 69
p.000069: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000069:
p.000069: the “ratification date” means the date when the Convention is ratified as respects Scotland;
p.000069: the “Scottish Central Authority” means—
p.000069: (a) an authority designated under Article 28 of the Convention for the purposes of acting as such; or
p.000069: (b) if no authority has been so designated any authority appointed by the Scottish Ministers for the
p.000069: purposes of carrying out the functions to be carried out under this schedule by the Scottish Central Authority;
p.000069: the “Scottish judicial and administrative authorities” means the courts having functions under this Act
p.000069: and the Public Guardian, the Mental Welfare Commission, local authorities and supervisory bodies.
p.000069:
p.000069:
p.000069: SCHEDULE 4
p.000069: (introduced by section 88(1))
p.000069: CONTINUATION OF EXISTING CURATORS, TUTORS, GUARDIANS AND ATTORNEYS UNDER THIS ACT
p.000069: Curators and tutors
p.000069: 1 (1) On the relevant date, any person holding office as curator bonis to an adult shall become guardian of that
p.000069: adult with power to manage the property or financial affairs of the adult.
p.000069: (2) Where a person—
p.000069: (a) before the relevant date, holds office as curator bonis to a person who has not attained the age of
p.000069: 16 years and does not hold such office for the sole reason that the person has not attained the age of 16 years; or
p.000069: (b) after the relevant date, is appointed as curator bonis to such a person,
p.000069: he shall become guardian of that person when that person attains the age of 16 years, with power to manage his property
p.000069: or financial affairs.
p.000069: (3) Where any proceedings for the appointment of a curator bonis to an adult have been commenced and
p.000069: not determined before the relevant date, they shall be determined in accordance with the law as it was
p.000069: immediately before that date; and any person appointed curator bonis shall become guardian of that adult with
...
p.000069: continuing and welfare attorney, as provided for in sub- paragraph (1), under this Act.
p.000069: (3) For the purposes of their application to persons who have become continuing attorneys by virtue of
p.000069: sub-paragraph (1)(a) or (c), the following provisions shall have effect as modified or disapplied by
p.000069: sub-paragraph (3).
p.000069: (4) Sections 6(2)(c)(i), 15, 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069: (5) For the purposes of their application to persons who have become welfare attorneys by virtue of sub-paragraph
p.000069: (1)(b) or (c) the following provisions shall have effect as modified or disapplied by sub-paragraph (5).
p.000069: (6) Sections 16(1) to (4) and (7), 19, 20(3)(a), 21, 22 and 23 shall not apply.
p.000069:
p.000069: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000071: 71
p.000071: Schedule 4—Continuation of existing curators, tutors, guardians and attorneys under this Act
p.000071:
p.000071: Managers
p.000071: 5 (1) Any managers of a hospital who have received and hold money and valuables on behalf of any person under
p.000071: section 94 of the 1984 Act may continue to do so under this Act for a period not exceeding 3 years from the relevant
p.000071: date.
p.000071: (2) This Act applies to managers as mentioned in sub-paragraph (1) notwithstanding that no certificate has been
p.000071: issued under section 37 in respect of the owner of the money or valuables.
p.000071: (3) Sections 35 and 38 shall not apply in the case of managers who continue to hold money by virtue of
p.000071: sub-paragraph (1).
p.000071: (4) Where the managers have authority from the Mental Welfare Commission to hold and manage money and other
p.000071: property in excess of the aggregate value mentioned in section 39 they may do so in relation to the money and
p.000071: valuables of any person which they continue to hold under sub-paragraph (1).
p.000071: Application of Act to persons who become guardians by virtue of this schedule
p.000071: 6 (1) For the purposes of their application to persons who have become guardians by virtue of this schedule,
p.000071: the following provisions shall have effect as modified or disapplied by this paragraph.
p.000071: (2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed
p.000071: as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law
p.000071: or guardian under the 1984 Act, as the case may be.
p.000071: (3) Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was
p.000071: a curator bonis, tutor dative or tutor-at-law to that adult; and, for the purpose of that application, for the
p.000071: reference in section 60(1) to a period in respect of which a guardianship order has been made or
p.000071: renewed there shall be substituted a reference to the period of 5 years from the relevant date or (in the case of a
p.000071: curator bonis who has under paragraph 1(2), became guardian to a person on his attaining the age of 16
p.000071: years) from the date on which the person attained the age of 16 years.
p.000071: (4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who
p.000071: was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as
p.000071: they would have continued had he not become a guardian by virtue of this schedule to this Act.
p.000071: (5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall
p.000071: be construed as including references to the local authority.
p.000071: (6) Schedule 2 shall apply only—
p.000071: (a) in a case where; and
p.000071: (b) to the extent that,
p.000071: the Public Guardian has determined that it should apply.
p.000071: (7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make
p.000071: such a determination, may be appealed to the sheriff, whose decision shall be final.
p.000071: (8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by
p.000071: virtue of this schedule.
p.000071:
p.000071: 72 Adults with Incapacity (Scotland) Act 2000
p.000071: (asp 4) Schedule 5—Minor and consequential amendments
p.000071:
p.000071: Transitional Provisions
p.000071: 7 Until Part 6 comes into force—
p.000071: (a) the references in section 23(1)(c) to a guardian shall be omitted;
p.000071: (b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a
p.000071: reference to the appointment of a curator bonis or tutor- dative or tutor-at-law with powers relating to the
p.000071: funds or accounts in question and paragraph (b) shall be omitted;
p.000071: (c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall
p.000071: be omitted;
p.000071: (d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator
p.000071: bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.
...
p.000079: (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this
p.000079: Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the
p.000079: offender;
p.000079: (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the
p.000079: character and antecedents of the offender and to the other available methods of dealing with him, that the
p.000079: most suitable method of disposing of the case is by means of an order under this subsection,
p.000079: the court may, subject to subsection (2) below, by order authorise his admission to and detention
p.000079: in such hospital as may be specified in the order.
p.000079: (1A) Where a person is convicted as mentioned in subsection (1) above and the court is satisfied—
p.000079: (a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements
p.000079: imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in
p.000079: section 58(1)(a) of that Act apply in relation to the offender;
p.000079: (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his
p.000079: personal welfare to be safeguarded or promoted,
p.000079: the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the
p.000079: guardianship of such local authority or of such other person approved by a local authority as may be specified in the
p.000079: order.”;
p.000079: (b) in subsections (2), (3) and (10) for “subsection (1)” there shall be substituted “subsection (1) or
p.000079: (1A)”;
p.000079: (c) in subsections (5) and (7) after “subsection (1)” there shall be inserted “or paragraph (a) of
p.000079: subsection (1A),”;
p.000079: (d) for subsection (6) there shall be substituted—
p.000079: “(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act
p.000079: referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
p.000079:
p.000079: 80 Adults with Incapacity (Scotland) Act 2000
p.000079: (asp 4) Schedule 5—Minor and consequential amendments
p.000079:
p.000079: (a) on the report of a mental health officer (complying with any requirements imposed by
p.000079: section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the
p.000079: general appropriateness of the order sought, based on an interview and assessment of the person
p.000079: carried out not more than 30 days before it makes the order, that it is necessary in the interests of
p.000079: the personal welfare of the person that he should be placed under guardianship;
p.000079: (b) that any person nominated to be appointed a guardian is suitable to be so appointed;
p.000079: (c) that the authority or person is willing to receive that person into guardianship; and
p.000079: (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland)
p.000079: Act 2000 (asp 4), in force relating to the person.”;
p.000079: (e) at the end there shall be added—
p.000079: “(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this
p.000079: section.”.
p.000079: (3) After section 60 of that Act there shall be inserted—
p.000079: “60A Intervention orders
p.000079: The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section
p.000079: 57(2)(c) or 58(1A) of this Act, make an intervention order where it considers that it would be appropriate to do so.”.
p.000079: (4) In section 61 of that Act—
p.000079: (a) in subsection (1), for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”;
p.000079: (b) in subsection (2), after “section 58(1)(a)” there shall be inserted “or 58(1A)(a)”; and
p.000079: (c) in subsection (3) for “and 58(1)(a)” there shall be substituted “, 58(1)(a) and 58(1A)(a)”.
p.000079:
p.000079: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000081: 81
p.000081: Schedule 6—Repeals
p.000081:
p.000081: SCHEDULE 6
p.000081: (introduced by section 88(3))
p.000081: REPEALS
p.000081:
p.000081: Enactment Extent of Repeal
p.000081:
p.000081:
p.000081: Curators Act 1585 (c.25(S)) The whole Act.
p.000081:
p.000081:
p.000081: Judicial Factors Act 1849 (12 & 13 Vict. c.51)
...
p.000081: In section 13, “tutors, curators”.
p.000081:
p.000081:
p.000081: Trusts (Scotland) Act 1921 (11 & 12 Geo.5 c.58)
p.000081: In section 2 in each of the definitions of “trust” and “trust deed” the words “tutor, curator, guardian or”
p.000081: and in the definition of “trustee” the words “tutor, curator, guardian”; in the definition of “judicial
p.000081: factor” the words “or curator”; the definitions of “curator”, “tutor” and “guardian”.
p.000081:
p.000081:
p.000081: U.S.A. Veterans’ Pensions Act 1949 (12 & 13 Geo.6 c.45)
p.000081: In section 1(4), “tutor, factor loco tutoris,” and “curator bonis or”.
p.000081:
p.000081: Medicines Act 1968 (c.67) In section 72(3)(d) and (4)(c), “curator bonis,”.
p.000081:
p.000081: Solicitors (Scotland) Act 1980 (c.46) In section 18(1)(a), “or becomes subject to guardianship”.
p.000081:
p.000081:
p.000081: Mental Health Act 1983 (c.20)
p.000081: In section 110, in subsection (1) “curator bonis, tutor or”; in subsection (2) “curator bonis, tutor, or”.
p.000081:
p.000081:
p.000081: Mental Health (Scotland) Act 1984 (c.36)
p.000081: In section 3 in subsection (1) “guardianship or”; in subsection (2)(b), “or who are subject to
p.000081: guardianship”.
p.000081:
p.000081: In section 5(2) “or subject to guardianship under the following provisions of this Act”.
p.000081:
p.000081: In section 7(1)(b), “under the following provisions of this Act”.
p.000081:
p.000081: In section 10(1)(b) “the following provisions of this Act or under”.
p.000081:
p.000081: In section 29 in subsection (1), paragraphs (b) and (c) and “or” which precedes them; in subsection (2), “or, as the
p.000081: case may be, by the local authority concerned”; in subsection (3), paragraph (b).
p.000081:
p.000081: Sections 36 to 52.
p.000081:
p.000081: In section 53(3), “or his reception into guardianship”. Section 55(3).
p.000081:
p.000081: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000083: 83
p.000083: Schedule 6—Repeals
p.000083:
p.000083: Enactment Extent of Repeal
p.000083:
p.000083: In section 57(4), “or subject to guardianship” and “or so subject” wherever occurring.
p.000083:
p.000083: In section 59, subsections (1)(b) and (2) and in subsection (3), “or 44”.
p.000083:
p.000083: Section 61.
p.000083:
p.000083: In section 76(1) paragraph (b) and “, a guardianship order”.
p.000083:
p.000083: In section 77, in subsection (1) “or subject to guardianship” and “or, as the case may be, for
p.000083: receiving him into guardianship”; subsection (3).
p.000083:
p.000083: In section 78, in subsection (1), “or reception into guardianship”; in subsection (2), “or his reception
p.000083: into guardianship”.
p.000083:
p.000083: In section 80(1), “or subject to guardianship” and “or, as the case may be, for receiving him into guardianship”.
p.000083:
p.000083: Section 84(4).
p.000083:
p.000083: In section 87(1), “or subject to guardianship” and “or placed under guardianship.”
p.000083:
p.000083: In section 92, subsection (1) and in subsection (2)(a), “or subject to guardianship thereunder”.
p.000083:
p.000083: Sections 93 and 94.
p.000083:
p.000083: In section 105(2), “subject to his guardianship under this Act or otherwise”.
p.000083:
p.000083: In section 107(1)(b), “subject to his guardianship under this Act or is otherwise”.
p.000083:
p.000083: In section 108(1)(a), “or being subject to guardianship”.
p.000083:
p.000083: In section 110 in subsection (1), “, or in the case of a patient subject to guardianship, the
p.000083: local authority concerned”, “or subject to guardianship”, “or guardianship” in both places,
p.000083: “or his reception into guardianship”; in subsection (4), “or, as the case may be, the local authority
p.000083: concerned in relation to a patient subject to guardianship as aforesaid”.
p.000083:
p.000083: In section 112, “or his reception into guardianship”.
p.000083:
p.000083: 84 Adults with Incapacity (Scotland) Act 2000
p.000083: (asp 4) Schedule 6—Repeals
p.000083:
p.000083: Enactment Extent of Repeal
p.000083:
p.000083: In section 113(1), “or for reception into guardianship”. In section 119, “guardianship under this Act”.
p.000083: In section 121 in subsection (1)(b), “or subject to guardianship”, “or 44”; in subsection (2),
p.000083: “or subject to guardianship”, “or 44”, “and subsection (2) of the said section 44”; in subsection (6),
p.000083: the words from “(in the case of” where first occurring to “guardianship)”, “or section 44”, “respectively”,
p.000083: “or the said section 44 (as the case may be)”.
p.000083:
p.000083: In section 125 in subsection (4), “or subject to guardianship”; in subsection (5), “or received, or
p.000083: liable to be received, into guardianship”, “(other than under Part V thereof)”, “or received or liable to be
p.000083: received into guardianship”.
p.000083:
p.000083:
p.000083: Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40)
p.000083:
p.000083: Criminal Procedure (Scotland) Act 1995 (c.46)
p.000083: Section 71.
p.000083:
p.000083: In section 59(2), “or section 39”.
p.000083:
p.000083: In section 61(1), “or section 39”.
p.000083:
p.000083: In section 230(1), “or 39”.
p.000083:
...
General/Other / Undue Influence
Searching for indicator undue influence:
(return to top)
p.000009: 15 Creation of continuing power of attorney
p.000009: (1) Where an individual grants a power of attorney relating to his property or financial affairs in
p.000009: accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of
p.000009: law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions
p.000009: about the matter to which the power of attorney relates.
p.000009: (2) In this Act a power of attorney granted under subsection (1) is referred to as a “continuing
p.000009: power of attorney” and a person on whom such power is conferred is referred to as a “continuing attorney”.
p.000009: (3) A continuing power of attorney shall be valid only if it is expressed in a written document
p.000009: which—
p.000009: (a) is subscribed by the granter;
p.000009: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a continuing
p.000009: power;
p.000009: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000009: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000009: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000009: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the continuing
p.000009: power of attorney is granted the granter understands its nature and extent;
p.000009: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000009: the granting of the power.
p.000009: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000009: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000009:
p.000009: Adults with Incapacity (Scotland) Act 2000 (asp 4)
p.000011: 11
p.000011: Part 2—Continuing powers of attorney and welfare powers of attorney
p.000011:
p.000011: 16 Creation and exercise of welfare power of attorney
p.000011: (1) An individual may grant a power of attorney relating to his personal welfare in accordance with
p.000011: the following provisions of this section.
p.000011: (2) In this Act a power of attorney granted under this section is referred to as a “welfare power of attorney”
p.000011: and an individual on whom such power is conferred is referred to as a “welfare attorney”.
p.000011: (3) A welfare power of attorney shall be valid only if it is expressed in a written document which—
p.000011: (a) is subscribed by the granter;
p.000011: (b) incorporates a statement which clearly expresses the granter’s intention that the power be a welfare power
p.000011: to which this section applies;
p.000011: (c) incorporates a certificate in the prescribed form by a solicitor or by a member of another prescribed class that—
p.000011: (i) he has interviewed the granter immediately before the granter subscribed the document;
p.000011: (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted
p.000011: other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the welfare power
p.000011: of attorney is granted the granter understands its nature and extent;
p.000011: (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates
p.000011: the granting of the power.
p.000011: (4) A solicitor or member of another prescribed class may not grant a certificate under subsection
p.000011: (3)(c) if he is the person to whom the power of attorney has been granted.
p.000011: (5) A welfare power of attorney—
p.000011: (a) may be granted only to an individual (which does not include a person acting in his capacity as an officer of a
p.000011: local authority or other body established by or under an enactment); and
p.000011: (b) shall not be exercisable unless—
p.000011: (i) the granter is incapable in relation to decisions about the matter to which the welfare power of attorney
p.000011: relates; or
p.000011: (ii) the welfare attorney reasonably believes that sub-paragraph (i) applies.
p.000011: (6) A welfare attorney may not—
p.000011: (a) place the granter in a hospital for the treatment of mental disorder against his will; or
p.000011: (b) consent on behalf of the granter to any form of treatment mentioned in section 48(1) or (2).
p.000011: (7) A welfare power of attorney shall not come to an end in the event of the bankruptcy of the granter or the
p.000011: welfare attorney.
...
Orphaned Trigger Words
p.000075: attorney of the patient who has powers to do so”;
p.000075: (b) in subsection (2) after “relative” there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be,”;
p.000075: (c) in subsection (3) after “relative” in both places there shall be inserted “, guardian or welfare attorney, as the
p.000075: case may be”;
p.000075: (d) in subsection (4) after “patient” where second occurring there shall be inserted “or by a guardian or welfare
p.000075: attorney of the patient”;
p.000075: (e) in subsection (5)(b) after “relative” there shall be inserted “and any guardian or welfare attorney”.
p.000075: (4) In section 20(1)(a) of that Act for “or his nearest relative” there shall be substituted “, his nearest
p.000075: relative, guardian or welfare attorney, as the case may be”.
p.000075: (5) In section 21(2)(b) of that Act—
p.000075: (a) after “relative” where first occuring there shall be inserted “, guardian or welfare attorney, as the case may
p.000075: be”;
p.000075: (b) after “relative” where second and third occurring there shall be inserted “guardian or welfare attorney”.
p.000075: (6) In section 22(4)(c) of that Act after “relative” there shall be inserted “and any guardian or welfare
p.000075: attorney”.
p.000075: (7) In section 24 of that Act—
p.000075: (a) in subsection (2) after “relative” there shall be inserted “, of any guardian or welfare attorney
p.000075: who has powers to do so,”;
p.000075: (b) in subsection (5) after “relative” there shall be inserted “and any guardian or welfare attorney”.
p.000075: (8) In section 26 of that Act—
p.000075: (a) in subsection (1)(b) after “patient” there shall be inserted “, by any guardian or welfare attorney of
p.000075: the patient who has power so to consent,”;
p.000075: (b) in subsection (4)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney “ and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (9) In section 26A of that Act—
p.000075: (a) in subsection (4) after “relative” there shall be inserted “or any guardian or welfare attorney who
p.000075: has powers to do so”;
p.000075: (b) in subsection (6)(b) after “relative” where first occurring there shall be inserted “and any guardian
p.000075: or welfare attorney” and after “relative” where second occurring there shall be inserted “, guardian or
p.000075: welfare attorney, as the case may be”.
p.000075: (10) In section 29 of that Act—
p.000075: (a) in subsection (2) after “relative” there shall be inserted “, to any guardian or welfare attorney”;
p.000075:
...
Appendix
Indicator List
| Indicator | Vulnerability |
|---|
| access | Access to Social Goods |
| age | Age |
| authority | Relationship to Authority |
| child | Child |
| children | Child |
| conviction | Religion |
| criminal | criminal |
| dependence | Drug Dependence |
| detained | person in detention center |
| disability | Mentally Disabled |
| displaced | displaced |
| faith | Religion |
| home | Property Ownership |
| ill | ill |
| illness | Physically Disabled |
| incapable | Mentally Incapacitated |
| incapacity | Incapacitated |
| married | Marital Status |
| minor | Youth/Minors |
| nursing home | In Nursing Home |
| officer | Police Officer |
| opinion | philosophical differences/differences of opinion |
| other country | Other Country |
| parents | parents |
| party | political affiliation |
| prison | Incarcerated |
| property | Property Ownership |
| refugee | Refugee Status |
| undue influence | Undue Influence |
Indicator Peers (Indicators in Same Vulnerability)
| Indicator | Peers |
|---|
| child | ['children'] |
| children | ['child'] |
| conviction | ['faith'] |
| faith | ['conviction'] |
| home | ['property'] |
| property | ['home'] |
Trigger Words
capacity
consent
ethics
justice
protection
risk
welfare
Applicable Type / Vulnerability / Indicator Overlay for this Input