Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Adults with Incapacity (Scotland) Act 2000

Type Act of the Scottish Parliament

Publication 2000-05-09

Last updated 2021-09-30

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(b) a guardian, appointed only in relation to the property or financial affairs of an adult, shall be appointed also or instead in relation to the personal welfare of the adult;

shall be made under section 57.

(5) Where the sheriff varies the powers conferred by a guardianship order or varies an ancillary order under this section, the sheriff clerk shall send a copy of the interlocutor containing the order to the Public Guardian who shall—

(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);

(b) notify the adult and the local authority and (in a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors including it) the Mental Welfare Commission; and

(c) if he is satisfied that the guardian has caution or other security, if so required, which covers the varied order, issue a new certificate of appointment where necessary.

Resignation of guardian

75

(1) A joint guardian, or a guardian in respect of whom a substitute guardian has been appointed, may resign by giving notice in writing of his intention to do so to the Public Guardian and the local authority and (in a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors including it) the Mental Welfare Commission.

(2) The resignation of a guardian as mentioned in subsection (1)—

(a) shall not take effect unless—

(i) the remaining joint guardian is willing to continue to act; or

(ii) the substitute guardian is willing to act;

(b) shall take effect on the receipt by the Public Guardian of notice in writing under subsection (1) together with evidence as to the matters contained in paragraph (a)(i) or (ii).

(3) On receiving notice in writing and evidence as mentioned in subsection (2)(b), the Public Guardian shall—

(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);

(b) if satisfied that the substitute guardian has found caution or given other security if so required, issue him with a new certificate of appointment;

(d) notify the adult.

(4) A substitute guardian who has not subsequently become guardian by virtue of section 63 may resign by giving notice in writing to the Public Guardian and the local authority and (in the case mentioned in subsection (1)) the Mental Welfare Commission and the resignation shall take effect on the date of receipt of the notice by the Public Guardian; and on its becoming effective, the Public Guardian shall—

(a) notify the guardian and the adult; and

(b) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv).

(5) A guardian—

(a) who has no joint guardian; or

(b) in respect of whom no substitute guardian has been appointed; or

(c) being a joint guardian or guardian in respect of whom a substitute has been appointed who cannot effectively resign by reason of subsection (2)(a)(i) or (ii),

shall not resign until a replacement guardian has been appointed under section 71.

Change of habitual residence

76

(1) Where the guardian is the chief social work officer of the local authority and the adult changes his place of habitual residence to the area of another local authority, the chief social work officer of the first mentioned local authority shall notify the chief social work officer of the second mentioned local authority (the “receiving authority”) who shall become guardian on receipt of the notification and shall within 7 days of that receipt notify the Public Guardian and (in a case where the incapacity of the adult is by reason of, or reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors which include it) the Mental Welfare Commission.

(2) The Public Guardian shall—

(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv) and issue a certificate of appointment to the new guardian; and

(b) subject to subsection (4), notify the adult within 7 days of receipt of the notification from the receiving authority.

(3) Subject to subsection (4), the chief social work officer of the receiving authority shall, within 7 working days of receipt of the notification, notify any person who received notification under section 58(7) of the appointment of the name of the officer responsible at any time for carrying out the functions and duties of guardian.

(4) If, in relation to the original application for a guardianship order, the sheriff has directed that intimation or notification of any application or other proceedings should not be given to the adult, the Public Guardian and the chief social work officer shall not notify the adult under subsection (2)(b) or (3) as the case may be.

Termination of authority to intervene and guardianship on death of adult

77

(1) An intervention order or a guardianship order in respect of an adult under this Part shall cease to have effect on his death.

(2) A person authorised under an intervention order or a guardian having powers relating to the property or financial affairs of the adult shall, until he becomes aware of the death of the adult or of any other event which has the effect of terminating his authority, be entitled to act under those powers if he acts in good faith.

(3) Where the authority of a person authorised under an intervention order or of a guardian (including a joint guardian) is terminated or otherwise comes to an end, a third party in good faith is entitled to rely on the authority of the person or guardian if he is unaware of the termination or ending of that authority.

(4) No title to any interest in heritable property acquired by a third party in good faith and for value from a person authorised under an intervention order or from a guardian having powers relating to the property or financial affairs of the adult shall be challengeable on the grounds only of the termination or coming to an end of the authority of the person or of the guardian.

(5) In this section any reference to a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland.

Amendment of registration under section 61 on events affecting guardianship or death of adult

78

(1) The Public Guardian shall—

(a) where under section 71(3)(a), 73(2)(a), 74(5)(a) or 75(3)(a) he enters in the register maintained by him under section 6(2)(b)(iv) prescribed particulars relating to a guardianship order in respect of which the appointment of the guardian was recorded or registered under section 61; or

(b) where an adult in respect of whom there was such a guardianship order has died,

apply forthwith to the Keeper of the Registers of Scotland for the recording of the interlocutor or other document vouching the event giving rise to the entry or, as the case may be, the certificate of the death or, as the case may be, the registering of the event or the death in the Land Register of Scotland.

(2) On an application under subsection (1), the Keeper shall, as appropriate—

(a) record the interlocutor or other document or certificate in the Register of Sasines and endorse it that it has been so recorded;

(b) update the title sheet of the heritable property accordingly.

Protection of third parties: guardianship

79

Where a third party has acquired, in good faith and for value, title to any interest in heritable property from a guardian that title shall not be challengeable on the ground only—

(a) of any irregularity of procedure in making the guardianship order; or

(b) that the guardian has acted outwith the scope of his authority.

PART 7 — MISCELLANEOUS

Future appointment of curator bonis etc. incompetent

80

In any proceedings begun after the commencement of this Act it shall not be competent to appoint a curator bonis, tutor-dative or tutor-at-law to a person who has attained the age of 16 years.

Repayment of funds

81

(1) Where—

(a) a continuing attorney;

(b) a welfare attorney;

(d) a guardian;

(e) a person authorised under an intervention order; or

(f) the managers of an authorised establishment within the meaning of Part 4,

uses or use any funds of an adult in breach of their fiduciary duty or outwith their authority or power to intervene in the affairs of the adult or after having received intimation of the termination or suspension of their authority or power to intervene, they shall be liable to repay the funds so used, with interest thereon at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff, to the account of the adult.

(2) Subsection (1) shall be without prejudice to sections 69 and 82.

Limitation of liability

82

(1) No liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised under an intervention order, a withdrawer or the managers of an establishment for any breach of any duty of care or fiduciary duty owed to the adult if he has or they have—

(a) acted reasonably and in good faith and in accordance with the general principles set out in section 1; or

(b) failed to act and the failure was reasonable and in good faith and in accordance with the said general principles.

(2) In this section any reference to—

(a) a guardian shall include a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(b) a continuing attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed), relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity; and

(c) a welfare attorney shall include a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

Offence of ill-treatment and wilful neglect

83

(1) It shall be an offence for any person exercising powers under this Act relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult.

(2) A person guilty of an offence under subsection (1) shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.

Application to guardians appointed under Criminal Procedure (Scotland) Act 1995

84

(1) Parts 1, 5, 6 and 7 shall apply to a guardian appointed under section 57(2)(c) or section 58(1) of the Criminal Procedure (Scotland) Act 1995 (c.46) (“the 1995 Act”) as they apply to a guardian with powers relating to the personal welfare of an adult appointed under Part 6; and accordingly the 1995 Act shall be amended as follows.

(2) After section 58 there shall be inserted—

(58A) (1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply— (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 section referred to as a “guardianship order”) whether appointed before or after the coming into force of these provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed under section 58 of that Act; (b) to a person authorised under an intervention order under section 60B of this Act as they apply to a person so authorised under section 53 of that Act. (2) In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers under section 64(11) of the 2000 Act and— (a) shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person; (b) may appoint a joint guardian; (c) may appoint a substitute guardian; (d) may make such consequential or ancillary order, provision or direction as it considers appropriate. (3) Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the court may— (a) make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate; (b) order that any reports relating to the person who will be the subject of the order be lodged with the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged; (c) make such further inquiry or call for such further information as appears to it to be appropriate; (d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings. (4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the order to the Public Guardian who shall— (a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of the 2000 Act; (b) unless he considers that the notification would be likely to pose a serious risk to the person’s health notify the person of the appointment of the guardian; and (c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor. (5) A guardianship order shall continue in force for a period of 3 years or such other period (including an indefinite period) as, on cause shown, the court may determine. (6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84 of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be determined in accordance with this Act as it was immediately in force before that date.

Jurisdiction and private international law

85

Schedule 3 shall have effect for the purposes of defining the jurisdiction, in respect of adults who are incapable within the meaning of this Act, of the Scottish judicial and administrative authorities and for making provision as to the private international law of Scotland in that respect.

Regulations

86

(1) Any power of the Scottish Ministers to make regulations under this Act shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

(2) Any such power may be exercised to make different provision for different cases or classes of case and includes power to make such incidental, supplemental, consequential or transitional provision or savings as appear to the Scottish Ministers to be appropriate.

Interpretation

87

(1) In this Act, unless the context otherwise requires—

“adult” shall be construed in accordance with section 1;

“continuing attorney” shall be construed in accordance with section 15;

“guardianship order” shall be construed in accordance with section 58;

“incapable” and “incapacity” shall be construed in accordance with section 1;

“intervention order” shall be construed in accordance with section 53;

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39), and references to a local authority shall be construed as references to the local authority for the area in which the adult resides;

“managers of an establishment” shall be construed in accordance with schedule 1;

“mental disorder” has the meaning given by section 328 of the 2003 Act;

“mental health officer” has the meaning given by section 329 of the 2003 Act;

“Mental Welfare Commission” means the Mental Welfare Commission for Scotland continued in being by section 4 of the 2003 Act;

“named person” has the meaning given by section 329 of the 2003 Act;

“nearest relative” has the meaning given by section 254 of the 2003 Act;

“office holder”, in relation to a guardian, means the chief social work officer of the local authority;

“person claiming an interest” includes the local authority, the Mental Welfare Commission and the Public Guardian;

“power of attorney” includes a factory and commission;

“practising solicitor” means a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c. 46);

“prescribe”, except for the purposes of anything which may be or is to be prescribed by the Public Guardian, means prescribe by regulations; and “prescribed” shall be construed accordingly;

“primary carer” in relation to an adult, means the person or organisation primarily engaged in caring for him;

“Public Guardian” shall be construed in accordance with section 6;

“State hospital” shall be construed in accordance with section 102 of the National Health Service (Scotland) Act 1978 (c.29);

“substitute guardian” shall be construed in accordance with section 63;

“welfare attorney” shall be construed in accordance with section 16;

“withdrawer” shall be construed in accordance with section 26;

“the 1984 Act” means the Mental Health (Scotland) Act 1984 (c.36).

“the 2003 Act” means the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).

(1A) Any power under this Act to prescribe anything by regulations is exercisable by the Scottish Ministers.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purposes of this Act, a person is bankrupt if his estate has been sequestrated for insolvency or he has granted a trust deed which has become a protected trust deed under Schedule 4 of the Bankruptcy (Scotland) Act 2016, or he has been adjudged bankrupt in England and Wales, or he has become bankrupt (however expressed) under the law of any other country.

Continuation of existing powers, minor and consequential amendments and repeals

88

(1) Schedule 4, which contains provisions relating to the continuation of existing powers, shall have effect.

(2) Schedule 5, which contains minor amendments and amendments consequential on the provisions of this Act, shall have effect.

(3) The enactments mentioned in schedule 6 are hereby repealed to the extent specified in the third column of that schedule.

Citation and commencement

89

(1) This Act may be cited as the Adults with Incapacity (Scotland) Act 2000.

(2) This Act shall come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint and different days may be appointed for different purposes.

(3) Without prejudice to the provisions of schedule 4, an order under subsection (2) may make such transitional provisions and savings as appear to the Scottish Ministers necessary or expedient in connection with any provision brought into force by the order; and where it does so, the statutory instrument under which it is made shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

SCHEDULE 1

1

For the purposes of Part 4 “the managers” of an establishment means—

(a) in relation to a hospital vested in the Scottish Ministers under the National Health Service (Scotland) Act 1978 (c.29), the Health Board responsible for the administration of that hospital;

(b) in relation to a hospital managed by a National Health Service trust established under section 12A of the said Act of 1978, the directors of the trust;

(i) the Scottish Ministers; or

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) if the management of that hospital has been delegated to a Health Board, to a Special Health Board, to a National Health Service trust or to the Common Services Agency for the Scottish Health Service, that Board, trust or Agency, as the case may be, or any person appointed by the Board, trust or agency, as the case may be, to manage the hospital;

(d) in relation to a care service or limited registration service—

(i) the person identified under section 59(2)(b) of the Public Services Reform (Scotland) Act 2010 (asp 8) in the application for registration of the service;

(ii) if the application is made under section 83(1) of that Act, the local authority or any person appointed by the local authority to manage the service; or

(iii) if another person has been identified in pursuance of regulations under section 78(2) of that Act, the other person so identified,

and in paragraph (d) above “care service" and “limited registration service" have the same meanings as in Part5 of the Public Services Reform (Scotland) Act 2010;

(e) in relation to an independent hospital or private psychiatric hospital (as defined in section 10F(2) of the National Health Service (Scotland) Act 1978 (c.29)), the person identified under section10P(2)(b) of that Act in the application for registration of the service.

2

The Scottish Ministers may by regulations amend the list of managers in paragraph 1.

SCHEDULE 2

Management plan

1

(1) A guardian with powers relating to the property and financial affairs of the adult shall, unless the sheriff otherwise directs, prepare a plan (a “management plan”), taking account of any directions given by the sheriff in the order appointing him, for the management, investment and realisation of the adult’s estate and for the application of the estate to the adult’s needs, so far as the estate falls within the guardian’s authority.

(2) The management plan shall be submitted in draft by the guardian to the Public Guardian for his approval, along with the inventory of the adult’s estate prepared under paragraph 3, not more than one month, or such other period as the Public Guardian may allow, after the submission of the inventory.

(3) The Public Guardian may approve the management plan submitted to him under sub-paragraph (2) or he may approve it with amendments and the plan as so approved or as so amended shall be taken account of by the guardian in the exercise of his functions in relation to the adult.

(4) Before the management plan is approved, the guardian shall, unless the sheriff on appointing him has conferred wider powers, have power only to—

(a) ingather and take control of the assets of the adult’s estate so as to enable him, when the management plan has been approved, to intromit with them;

(b) make such payments as are necessary to provide for the adult’s day to day needs.

(5) The Public Guardian may authorise the guardian to exercise any function within the scope of his authority before the management plan is approved, if it would be unreasonable to delay him exercising that function until the plan had been approved.

(6) The guardian shall keep the management plan under review and shall put forward to the Public Guardian proposals for variation of it whenever it appears to him to be appropriate.

(7) The Public Guardian—

(a) may at any time propose any variation to the management plan; and

(b) shall review the plan whenever the guardian submits his accounts for audit.

(8) The Public Guardian shall notify the guardian of any variation which he proposes to make to the management plan and shall not make any such variation without affording the guardian an opportunity to object.

(9) Having heard any objections by the guardian as mentioned in sub-paragraph (8) the Public Guardian may make the variation with or without amendment.

Directions from sheriff

2

Where the guardian disagrees with any decision made by the Public Guardian in relation to a management plan prepared under paragraph 1, he may apply to the sheriff for a determination in relation to the matter and the sheriff’s decision shall be final.

Inventory of estate

3

(1) A guardian with powers relating to the property or financial affairs of the adult shall, as soon after his appointment as possible and in any event within 3 months of the date of registration of his appointment or such other period as the Public Guardian may allow, submit to the Public Guardian for examination and approval a full inventory of the adult’s estate in so far as it falls within the scope of the guardian’s authority, along with such supporting documents and additional information as the Public Guardian may require.

(2) The inventory shall be in a form, and contain information, prescribed by the Public Guardian.

(3) Errors in and omissions from the inventory which are discovered by the guardian after the inventory has been approved by the Public Guardian shall be notified by him to the Public Guardian within 6 months of the date of discovery or when submitting his next accounts to the Public Guardian, whichever occurs sooner.

(4) The Public Guardian may dispense with the need for the guardian to submit an inventory under sub-paragraph (1) or may require the guardian to take such other action as he thinks appropriate in lieu of submitting an inventory.

Money

4

The guardian shall deposit all money received by him as guardian in a bank or a building 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 may be prescribed) so deposited shall earn interest.

Powers relating to investment and carrying on of business by guardian

5

(1) Subject to the following provisions of this paragraph, a guardian with powers relating to the property or financial affairs of the adult shall be entitled—

(a) after obtaining and considering proper advice, to retain any existing investment of the adult;

(b) to use the adult’s estate to make new investments in accordance with the management plan prepared under paragraph 1 or with the consent of the Public Guardian.

(2) For the purpose of sub-paragraph (1)—

(a) proper advice is the advice of a person who has permission for the purposes of the Financial Services and Markets Act 2000 to advise on investments who is not the guardian or any person who is an employer, employee or business partner of the guardian; and

(b) the advice must be given or subsequently confirmed in writing.

(2A) Sub-paragraph (2) must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

(3) The guardian shall keep every investment under review and in doing so shall have regard to the following principles—

(a) that the investment must be prudent;

(b) that there must be diversification of investments; and

(4) The Public Guardian may at any time direct the guardian to realise any investment.

(5) The guardian may, subject to any direction given by the Public Guardian, carry on any business of the adult.

(6) Any decision by the Public Guardian—

(a) under sub-paragraph (4) as to directing the guardian to realise investments;

(b) under sub-paragraph (5) as to giving directions to the guardian in carrying on the business of the adult,

may be appealed to the sheriff, whose decision shall be final.

Purchase or disposal of accommodation

6

(1) The guardian shall not, without the consent of the Public Guardian—

(a) in principle; and

(b) to the purchase or selling price,

purchase accommodation for, or dispose of any accommodation used for the time being as a dwelling house by, the adult.

(2) On receipt of an application for consent in principle under sub-paragraph (1)(a) in the prescribed form, the Public Guardian shall intimate the application to the adult, his nearest relative, his primary carer , his named person and any person who the Public Guardian considers has an interest in the application and advise them of the prescribed period within which they may object to the granting of the application.

(3) The Public Guardian shall remit any objection under sub-paragraph (2) for determination by the sheriff (whose decision shall be final) and—

(a) if the sheriff upholds the objection, shall refuse the application;

(b) if the sheriff dismisses the objection, shall grant the application.

(4) Where the Public Guardian proposes to refuse the application other than under sub-paragraph (3)(a) he shall intimate his decision to the applicant and advise him of the prescribed period within which he may object to the refusal; and he shall not refuse the application without affording the applicant, if he objects, an opportunity of being heard.

(5) Having heard any objections as mentioned in sub-paragraph (4) or where there is no objection as mentioned in sub-paragraph (2), the Public Guardian may grant the application.

(6) The Public Guardian may at his own instance or at the instance of any person who objects to the granting or refusal (other than a refusal under sub-paragraph (3)(a)) of the application remit the application to the sheriff for determination by the sheriff, whose decision shall be final.

(7) If consent in principle to the purchase or disposal of the accommodation is given, the guardian shall apply to the Public Guardian for consent under sub-paragraph (1)(b) to the purchase or selling price.

(8) A decision of the Public Guardian—

(a) to grant or to refuse (other than under sub-paragraph (3)(a)) an application; or

(b) to refuse to remit an application to the sheriff under sub-paragraph (6),

may be appealed to the sheriff, whose decision shall be final.

(9) A decision of the Public Guardian to give or to refuse consent under sub-paragraph (1)(b) shall be final.

Accounting and auditing

7

(1) A guardian with powers relating to the property or financial affairs of the adult shall submit accounts in respect of each accounting period to the Public Guardian within one month from the end of the accounting period or such longer period as the Public Guardian may allow.

(2) There shall be submitted with the accounts under sub-paragraph (1) such supporting documents as the Public Guardian may require, and the Public Guardian may require the guardian to furnish him with such information in connection with the accounts as the Public Guardian may determine.

(3) For the purposes of this paragraph, the first accounting period shall commence with the date of appointment of the guardian and end at such date not later than 18 months after the date of registration of the guardian’s appointment as the Public Guardian may determine; and thereafter each accounting period shall be a year commencing with the date on which the immediately previous accounting period ended.

(4) Notwithstanding the foregoing provisions of this paragraph, the Public Guardian may at any time—

(a) give directions as to the frequency of accounting periods;

(b) dispense with the need for the submission of accounts by the guardian; or

(5) The accounts shall be in such form as is prescribed by the Public Guardian and different forms may be prescribed for different cases or descriptions of case.

(6) Where the estate of the adult includes a business or an interest in a business that part of the accounts which relates to the business or to the interest in the business shall be accompanied by a certificate from such person and in such form as may be prescribed by the Public Guardian, certifying the accuracy of that part of the accounts.

(7) The accounts submitted to the Public Guardian under sub-paragraph (1) (other than any part to which a certificate as mentioned in sub-paragraph (6) relates) shall be audited by the Public Guardian or by an accountant appointed by, and responsible to, the Public Guardian for that purpose.

Approval of accounts

8

(1) After the accounts of the guardian have been audited, the Public Guardian shall, if the accounts appear to him—

(a) to be a true and fair view of the guardian’s management of the adult’s estate, approve them and fix the remuneration (if any) due to the guardian;

(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 extent to which they do not represent such a true and fair view and adjusting the accounts accordingly.

(2) The Public Guardian may approve the accounts, notwithstanding any minor inconsistencies or absence of full documentation in the accounts, if he is satisfied that the guardian acted reasonably and in good faith.

(3) The Public Guardian shall send any report prepared by him under sub-paragraph (1)(b) to the guardian, who may object to anything contained in the report within 28 days of it being sent to him.

(4) If no objection is taken to the report, the accounts as adjusted by the Public Guardian shall be regarded as approved by him.

(5) Where any objection taken to the report cannot be resolved between the guardian and the Public Guardian, the matter may be determined by the sheriff on an application by the guardian, and the sheriff’s decision shall be final.

(6) Without prejudice to sub-paragraph (7), the guardian shall be liable to make good any deficiency revealed by the accounts as approved by the Public Guardian under sub-paragraph (1)(a).

(7) Where a deficiency is revealed as mentioned in sub-paragraph (6), the Public Guardian may require the guardian to pay interest to the adult’s estate on the amount of the deficiency at the rate fixed by Act of Sederunt as applicable to a decree of the sheriff in respect of the period for which it appears that the deficiency has existed.

SCHEDULE 3

General

1

(1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application or other proceedings and otherwise carry out functions under this Act in relation to an adult if—

(a) the adult is habitually resident in Scotland; or

(b) property which is the subject of the application or proceedings or in respect of which functions are carried out under this Act is in Scotland; or

(c) the adult, although not habitually resident in Scotland is there or property belonging to the adult is there and, in either case, it is a matter of urgency that the application is or the proceedings are dealt with; or

(d) the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary nature and its effect limited to Scotland.

(2) As from the ratification date, the Scottish judicial and administrative authorities shall, in addition to the jurisdiction mentioned in sub-paragraph (1) in the circumstances set out therein, have the jurisdiction mentioned in that sub-paragraph in the following circumstances—

(a) the adult—

(i) is a British citizen; and

(ii) has a closer connection with Scotland than with any other part of the United Kingdom; and

(b) Article 7 of the Convention has been complied with,

or if the Scottish Central Authority, having received a request under Article 8 of the Convention from an authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as would, under this Act, have functions in relation to the adult, have agreed to the request.

(3) As from the ratification date, the provisions of the Convention shall apply to the exercise of jurisdiction under this schedule where the adult—

(a) is habitually resident in a Contracting State other than the United Kingdom; or

(b) not being habitually resident in Scotland, is or has been the subject of protective proceedings in such a Contracting State.

(4) As from the ratification date, any application made to a Scottish judicial or administrative authority under this Act which—

(a) relates to an adult who is not habitually resident in Scotland; and

(b) does not require to be determined as a matter of urgency,

shall be accompanied by information as to which State the adult habitually resides in and as to any other application relating to the adult which has been dealt with or is being made, or proceedings so relating which have been or are being brought, in any Contracting State other than the United Kingdom.

(5) For the purposes of this paragraph, an adult—

(a) whose habitual residence cannot be ascertained; or

(b) who is a refugee or has been internationally displaced by disturbance in the country of his habitual residence,

shall be taken to be habitually resident in the State which he is in.

Appropriate sheriff

2

(1) The sheriff having jurisdiction under this schedule to take measures is the sheriff in whose sheriffdom—

(a) in relation to a case falling within paragraph 1(1)(a), the adult is habitually resident;

(b) in relation to a case falling within paragraph 1(1)(b), the property is located;

(d) in relation to a case falling within paragraph 1(1)(d), the adult is present.

(2) The sheriff shall also have jurisdiction to vary or recall any intervention order or guardianship order made by him under this Act if no Contracting State other than the United Kingdom has, by way of its judicial or administrative authorities, jurisdiction; and—

(a) no other court or authority has jurisdiction; or

(b) another court or authority has jurisdiction but—

(i) it would be unreasonable to expect an applicant to invoke it; or

(ii) that court or authority has declined to exercise it.

(3) Notwithstanding that any other judicial or administrative authority has jurisdiction under sub-paragraph (1)(a) to take measures, a sheriff shall have jurisdiction to take measures if—

(a) the adult is present in the sheriffdom; and

(b) the sheriff considers that it is necessary, in the interests of the adult, to take the measures immediately.

(4) Where, by operation of paragraph 1, jurisdiction falls to be exercised by a sheriff but the case is one appearing to fall outside sub-paragraphs (1) and (2), the sheriff having jurisdiction is the Sheriff of the Lothians and Borders at Edinburgh.

Applicable law

3

(1) The law applicable to anything done under this Act by a Scottish judicial or administrative authority in relation to an adult is the law of Scotland.

(2) Sub-paragraph (1) does not prevent a Scottish judicial or administrative authority from applying the law of a country other than Scotland if, in circumstances which demonstrate a substantial connection with that other country and having regard to the interests of the adult, it appears appropriate to do so.

(3) Such an authority shall, however, in the exercise of the powers conferred by section 20 of this Act, take into consideration to the extent possible the law which, as provided in paragraph 4, governs the power of attorney.

(4) Where a measure for the protection of an adult has been taken in one State and is implemented in another, the conditions of its implementation are governed by the law of that other State.

(5) Any question whether a person has authority by virtue of any enactment or rule of law to represent an adult shall be governed—

(a) where such representation is for the purposes of the immediate personal welfare of the adult and the adult is in Scotland, by the law of Scotland; and

(b) in any other case, by the law of the country in which the adult is habitually resident.

4

(1) The law governing the existence, extent, modification and extinction of continuing or welfare powers of attorney (including like powers, however described) shall be that of the State in which the granter habitually resided at the time of the grant of these powers.

(2) Where, however, the granter of such a power of attorney so provides in writing, the law so applicable shall instead be the law of a State—

(a) of which the granter is a national;

(b) in which the granter was habitually resident before the grant; or

(3) The manner of exercise of such a power shall be governed by the law of the State in which its exercise takes place.

(4) The law of a State may be applied under sub-paragraph (2)(c) above only in respect of the property referred to in that provision.

(5) Nothing in sub-paragraphs (1) and (2) prevents the sheriff from exercising powers under section 20 of this Act if a power of attorney is not being exercised so as to safeguard the welfare or property of the granter.

(6) It is not an objection to the validity of any contract or other transaction between a person acting or purporting to act as the representative of an adult and any other person that the person so acting or purporting to act was not entitled so to act under the law of a country other than the country where the contract or other transaction was concluded.

(7) Sub-paragraph (6) does not, however, apply where the other person knew or ought to have known that the entitlement so to act of the person acting or purporting to act as representative was governed by the law of that other country.

(8) Sub-paragraph (6) applies only if the persons entering into the contract or other transaction were, when they did so, both (or all) in the same country.

5

Nothing in this schedule displaces any enactment or rule of law which has mandatory effect for the protection of an adult with incapacity in Scotland whatever law would otherwise be applicable.

6

Nothing in this schedule requires or enables the application in Scotland of any provision of the law of a country other than Scotland so as to produce a result which would be manifestly contrary to public policy.

Recognition and enforcement

7

(1) Any measure taken under the law of a country other than Scotland for the personal welfare or the protection of property of an adult with incapacity shall, if one of the conditions specified in sub-paragraph (2) is met, be recognised by the law of Scotland.

(2) These conditions are—

(a) that the jurisdiction of the authority of the other country was based on the adult’s habitual residence there;

(b) that the United Kingdom and the other country were, when the measure was taken, parties to the Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided for in the Convention.

(3) Recognition of a measure may, however, be refused—

(a) if, except in a case of urgency—

(i) the authority which took it did so without the adult to whom it related being given an opportunity to be heard; and

(ii) these circumstances constituted a breach of natural justice;

(b) if it would be manifestly contrary to public policy to recognise the measure;

(c) if the measure conflicts with any enactment or rule of law of Scotland which is mandatory whatever law would otherwise be applicable;

(d) if the measure is incompatible with a later measure taken in Scotland or recognised by the law of Scotland;

(e) if the measure would have the effect of placing the adult in an establishment in Scotland and—

(i) the Scottish Central Authority has not previously been provided with a report on the adult and a statement of the reasons for the proposed placement and has not been consulted on the proposed placement; or

(ii) where the Authority has been provided with such a report and statement and so consulted, it has, within a reasonable time thereafter, declared that it disapproves of the proposed placement.

8

(1) A measure which is enforceable in the country of origin and which is recognised under paragraph 7 by the law of Scotland may, in accordance with rules of court, be registered.

(2) A measure so registered shall be as enforceable as a measure having the like effect granted by a court in Scotland.

9

(1) For the purposes of recognition or enforcement of a measure taken outside Scotland in relation to an adult, findings of fact going to jurisdiction made by the authority taking the measure are conclusive of the facts found.

(2) The validity or merits of a measure falling to be recognised by the law of Scotland by virtue of this schedule shall not be questioned in any proceedings except for the purposes of ascertaining its compliance with any provision of this schedule.

10

(1) The Scottish Ministers may, by order, provide for the recognition and enforcement of orders made and other measures taken by authorities in any part of the United Kingdom other than Scotland.

(2) The provision so made shall accord no less recognition and secure that these orders and measures are no less enforceable than if they were measures which are recognised by the law of Scotland under paragraph 7.

Co-operation, avoidance of conflict of jurisdiction and compliance with the Convention

11

(1) Her Majesty may by Order in Council confer on the Scottish Central Authority, and the Scottish judicial and administrative authorities such powers, and impose on them such duties additional, in each case, to those which they have under this Act, as are necessary or expedient to enable them to give effect in Scotland to the Convention on and after the ratification date.

(2) An Order in Council under sub-paragraph (1) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(3) A certificate delivered in pursuance of Article 38 of the Convention by a designated authority of a Contracting State other than Scotland shall be proof of the matters stated in it unless the contrary is proved.

General

12

No provision of this schedule deriving from or giving effect to the Convention extends to any matter to which the Convention, by Article 4 thereof, does not apply.

13

Orders or regulations under this schedule shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

14

In this schedule—

“the Convention” means the Hague Convention of 13 January 2000 on the International Protection of Adults; a “measure for the personal welfare or protection of the property” of an adult with incapacity includes any order, direction or decision effecting or relating to—the determination of the incapacity and the institution of appropriate measures of protection;the placing of the adult under the protection of a judicial or administrative authority;guardianship, curatorship or analogous institutions;the appointment and functions of any person or body having charge of the adult’s person or property or otherwise representing the adult;the placement of the adult in an establishment or other place where the personal welfare of the adult is safeguarded;the administration, conservation or disposal of the adult’s property; orthe authorisation of a specific intervention for the personal welfare or protection of the property of the adult; the “ratification date” means the date when the Convention is ratified as respects Scotland; the “Scottish Central Authority” means—

(a) an authority designated under Article 28 of the Convention for the purposes of acting as such; or

(b) if no authority has been so designated any authority appointed by the Scottish Ministers for the purposes of carrying out the functions to be carried out under this schedule by the Scottish Central Authority;

the “Scottish judicial and administrative authorities” means the courts having functions under this Act and the Public Guardian, the Mental Welfare Commission, local authorities and supervisory bodies.

SCHEDULE 4

Curators and tutors

1

(1) On the relevant date, any person holding office as curator bonis to an adult shall become guardian of that adult with power to manage the property or financial affairs of the adult.

(2) Where a person—

(a) before the relevant date, holds office as curator bonis to a person who has not attained the age of 16 years and does not hold such office for the sole reason that the person has not attained the age of 16 years; or

(b) after the relevant date, is appointed as curator bonis to such a person,

he shall become guardian of that person when that person attains the age of 16 years, with power to manage his property or financial affairs.

(3) Where any proceedings for the appointment of a curator bonis to an adult have been commenced and not determined before the relevant date, they shall be determined in accordance with the law as it was immediately before that date; and any person appointed curator bonis shall become guardian of that adult with power to manage the property or financial affairs of the adult.

(4) On the relevant date, any person holding office as tutor-dative to an adult shall become guardian of that adult and shall continue to have the powers conferred by the court on his appointment as tutor-dative.

(5) Where any proceedings for the appointment of a tutor-dative to an adult have been commenced and not determined before the relevant date, they shall be determined in accordance with the law as it was immediately before that date; and any person appointed tutor-dative shall become guardian of that adult with such power to manage the property, financial affairs or personal welfare of the adult as the court may determine.

(6) On the relevant date, any person holding office as tutor-at-law to an adult shall become guardian of that adult with power to manage the property, financial affairs or personal welfare of the adult.

(7) Where any proceedings for the appointment of a tutor-at-law to an adult have been commenced and not determined before the relevant date, they shall be determined in accordance with the law as it was immediately before that date; and any person appointed tutor-at-law shall become guardian of that adult with power to manage the property, financial affairs or personal welfare of the adult.

Guardians

2

(1) On the relevant date, any person holding office as guardian of an adult under the 1984 Act shall become guardian of that adult under this Act and shall continue to have the powers set out in paragraphs (a) to (c) of section 41(2) of that Act notwithstanding the repeal of that section by this Act.

(2) Where any proceedings for the appointment of such a guardian of an adult have been commenced and not determined before the relevant date, they shall be determined in accordance with the 1984 Act as it was in force immediately before that date; and any person appointed guardian shall become guardian of that adult under this Act with the powers set out in the said paragraphs (a) to (c) of section 41(2) of the 1984 Act.

Proceedings relating to existing appointments

3

Where any proceedings in relation to the functions of an existing curator bonis, tutor-dative, tutor-at-law or guardian have been commenced and not determined before the relevant date, they shall be determined in accordance with the law as it was immediately before that date.

Attorneys

4

(1) On the relevant date, any person holding office as—

(a) an attorney under a contract of mandate or agency with powers relating solely to the property or financial affairs of an adult shall become a continuing attorney under this Act;

(b) an attorney under a contract of mandate or agency with powers relating solely to the personal welfare of an adult shall become a welfare attorney under this Act;

(c) an attorney under a contract of mandate or agency with powers relating both to the property and financial affairs and to the personal welfare of an adult shall become a continuing attorney and a welfare attorney under this Act.

(2) Where, under the provisions of a contract of mandate or agency executed before the relevant date, a person is appointed as an attorney after that date he shall be a continuing attorney, a welfare attorney or a continuing and welfare attorney, as provided for in sub-paragraph (1), under this Act.

(3) Sections 6(2)(c)(i), 15, 19, 20(3)(a), 21, 22, and 23 shall not apply to persons who have become continuing attorneys by virtue of sub-paragraph (1)(a) or (c).

(4) Sections 16(1) to (4) and (7), 19, 20(3)(a), 21, 22, and 23 shall not apply to persons who have become welfare attorneys by virtue of sub-paragraph (1)(b) or (c).

Managers

5

(1) Any managers of a hospital who have received and hold money and valuables on behalf of any person under section 94 of the 1984 Act may continue to do so under this Act for a period not exceeding 3 years from the relevant date.

(2) This Act applies to managers as mentioned in sub-paragraph (1) notwithstanding that no certificate has been issued under section 37 in respect of the owner of the money or valuables.

(3) Sections 35 and 38 shall not apply in the case of managers who continue to hold money by virtue of sub-paragraph (1).

(4) Where the managers have authority from the Mental Welfare Commission to hold and manage money and other property in excess of the aggregate value mentioned in section 39 they may do so in relation to the money and valuables of any person which they continue to hold under sub-paragraph (1).

Application of Act to persons who become guardians by virtue of this schedule

6

(1) For the purposes of their application to persons who have become guardians by virtue of this schedule, the following provisions shall have effect as modified or disapplied by this paragraph.

(2) In section 67(2) the reference to the certificate of appointment issued under section 58 shall be construed as a reference to the order of the court appointing the person as curator bonis, tutor-dative, tutor-at-law or guardian under the 1984 Act, as the case may be.

(3) Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was a curator bonis, tutor dative or tutor-at-law to that adult; and, for the purpose of that application, for the reference in section 60(1) to a period in respect of which a guardianship order has been made or renewed there shall be substituted a reference

(a) in the case of a curator bonis who, under paragraph 1(2), became guardian to a person on the person attaining the age of 16 years, to the period of 2 years from the later of the following dates—

(i) the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act 2007 (asp 10) came into force;

(ii) the date on which the person attained the age of 16 years,

(b) in any other case, to the period of 2 years from the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act 2007 (asp 10) came into force.

(3A) A person who has become a guardian to an adult by virtue of this schedule and who was a curator bonis, tutor dative or tutor-in-law to that adult shall cease to be authorised to act as that adult's guardian—

(a) where the person does not apply for renewal of guardianship within the 2 year period set by sub-paragraph (3), on the expiry of that period;

(b) where—

(i) the person applies for such a renewal within that period; and

(ii) the sheriff refuses the application,

on the date of refusal;

(i) the person applies for such a renewal within that period; and

(ii) the sheriff grants the application,

in accordance with the provisions of this Act.

(3B) Sub-paragraph (3A) does not prevent the authority of a guardian of the type mentioned in that sub-paragraph from being terminated (by virtue of the terms on which the guardian is authorised to act or sections 71, 73, 75 or 79A) earlier than the date on which it would otherwise terminate by operation of that sub-paragraph.

(3C) Where—

(a) a person (“G”) who was a curator bonis, tutor dative or tutor-at-law to an adult becomes the adult's guardian by virtue of this schedule; and

(b) another person is appointed under section 62 as an additional guardian to the adult before G's appointment as guardian has been renewed in accordance with the provisions of this Act,

subsection (3A) applies in relation to the additional guardian as it applies in relation to G.

(3D) The Public Guardian must take reasonable steps to give notice of the effect of sub-paragraph (3A) to any person who—

(a) is a guardian to an adult by virtue of this schedule;

(b) was a curator bonis to that adult; and

(3E) A local authority must take reasonable steps to give notice of the effect of sub-paragraph (3A) to any person who—

(a) is a guardian to an adult residing within the local authority's area by virtue of this schedule;

(b) was a tutor dative or tutor-in-law to that adult; and

(4) Section 60 shall not apply to a person who has become a guardian to an adult by virtue of this schedule and who was a guardian of that adult under the 1984 Act, in which case the powers shall continue until such time as they would have continued had he not become a guardian by virtue of this schedule to this Act.

(5) In sections 68(2) and (3) and 76 the references to the chief social work officer of the local authority shall be construed as including references to the local authority.

(6) Schedule 2 shall apply only—

(a) in a case where; and

(b) to the extent that,

the Public Guardian has determined that it should apply.

(7) Any determination by the Public Guardian under sub-paragraph (6), or a decision by him not to make such a determination, may be appealed to the sheriff, whose decision shall be final.

(8) No reference in this Act to registration shall have effect in relation to any person who becomes a guardian by virtue of this schedule.

Transitional Provisions

7

Until Part 6 comes into force—

(a) the references in section 23(1)(c) to a guardian shall be omitted;

(b) in section 31(7), the reference in paragraph (a) to the appointment of a guardian shall be construed as a reference to the appointment of a curator bonis or tutor-dative or tutor-at-law with powers relating to the funds or accounts in question and paragraph (b) shall be omitted;

(c) in section 34(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator bonis or tutor-dative or tutor-at-law with powers relating to the funds or account in question and paragraph (b) shall be omitted;

(d) in section 46(1), the reference in paragraph (a) to a guardian shall be construed as a reference to a curator bonis or tutor-dative or tutor-at-law with powers relating to the matter and paragraph (b) shall be omitted.

Interpretation

8

In this schedule the “relevant date” in relation to any paragraph in which it appears means the date of coming into force of that paragraph.

SCHEDULE 5

General

1

With effect from the commencement of this paragraph any reference in any enactment or document to a 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 guardian with similar powers appointed to that person under this Act.

Defence Act 1842 (c. 94)

2

(1) In section 15 of the Defence Act 1842—

(a) after “nonage" in both places there shall be inserted “ or mental incapacity ”;

(b) “or not of whole mind" shall be repealed;

(2) In section 27 of that Act for “lunacy" there shall be substituted “ mental incapacity ”.

Judicial Factors Act 1849 (c. 51)

3

In section 34A of the Judicial Factors Act 1849 for “recovery, death or coming of age of the ward" there shall be substituted “ coming to an end of the situation giving rise to it ”.

Improvement of Land Act 1864 (c. 114)

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Titles to Land (Consolidation) (Scotland) Act 1868 (c. 101)

5

(1) In section 24 of the Titles to Land (Consolidation) (Scotland) Act 1868 for “mental disorder within the meaning of the Mental Health (Scotland) Act 1960" there shall be substituted “ mental or other incapacity ”.

(2) In section 62 of that Act for “of insane mind" there shall be substituted “ mental or other incapacity ”.

Judicial Factors (Scotland) Act 1889 (c. 39)

6

(1) In section 2 of the Judicial Factors (Scotland) Act 1889 at the beginning there shall be inserted “Without prejudice to section 6(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (Accountant of Court to be Public Guardian)".

(2) In section 6 of that Act, in the proviso, after “apply to" there shall be inserted “ guardians appointed under the Adults with Incapacity (Scotland) Act 2000 (asp 4), to ”.

Heritable Securities (Scotland) Act 1894 (c. 44)

7

In section 13 of the Heritable Securities (Scotland) Act 1894—

(a) after “(b) trustees" there shall be inserted—

(c) the person entitled to act as the legal representative of any such person

;

(b) “tutors, curators," shall be repealed.

National Assistance Act 1948 (c. 29)

8

In section 49 of the National Assistance Act 1948 as it applies to Scotland—

(a) immediately before “the council" where last occurring there shall be inserted “ or applies for an intervention order or for appointment as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4) ”;

(b) immediately before “in so far as" there shall be inserted “ or his functions under the intervention order or as guardian ”.

Offices, Shops and Railway Premises Act 1963 (c. 41)

9

In section 90(1) of the Offices, Shops and Railway Premises Act 1963 in the definition of “owner" for “, tutor or curator" there shall be substituted “ or person entitled to act as legal representative of a person under disability by reason of nonage or mental or other incapacity ”.

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Medicines Act 1968 (c. 67)

12

In section 72 of the Medicines Act 1968—

(a) in subsection (1) for “curator bonis" there shall be substituted “ guardian ”;

(b) in subsections (3)(d) and (4)(c) “curator bonis," shall be repealed.

Sheriff Courts (Scotland) Act 1971 (c. 58)

13

In section 32(1) of the Sheriff Courts (Scotland) Act 1971 after paragraph (j) there shall be inserted—

(k) prescribing the procedure to be followed in appointing a person under section 3(4) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) and the functions of such a person.

Land Registration (Scotland) Act 1979 (c. 33)

14

In section 12(3) of the Land Registration (Scotland) Act 1979 after paragraph (k) there shall be inserted—

(kk) the loss is suffered by an adult within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4) because of the operation of sections 22, 49, 60, 70 or 71A of that Act, or by any person who acquires any right, title or interest from that adult;

Solicitors (Scotland) Act 1980 (c. 46)

15

In section 18(1) of the Solicitors (Scotland) Act 1980—

(a) in paragraph (a) “or becomes subject to guardianship" shall be repealed;

(b) for paragraph (b) there shall be substituted—

(b) a guardian is appointed to a solicitor under the Adults with Incapacity (Scotland) Act 2000 (asp 4);

Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

16

In group C of Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 for paragraphs (b) and (c) there shall be substituted—

(b) persons for the time being subject to guardianship under the Adults with Incapacity (Scotland) Act 2000 (asp 4).

Mental Health (Scotland) Act 1984 (c. 36)

17

(1) In section 3 of the Mental Health (Scotland) Act 1984—

(a) in subsection (1) “guardianship or” shall be repealed;

(b) in subsection (2) in paragraph (b) “or who are subject to guardianship” shall be repealed.

(2) In section 5(2) of that Act “and the guardian of any person subject to guardianship under this Act” shall be repealed.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insolvency Act 1986 (c. 45)

18

In section 390(4)(c) of the Insolvency Act 1986 at the end there shall be added “or has had a guardian appointed to him under the Adults with Incapacity (Scotland) Act 2000 (asp 4).".

Legal Aid (Scotland) Act 1986 (c. 47)

19

In section 36(3) of the Legal Aid (Scotland) Act 1986, after paragraph (b) there shall be inserted—

(bb) is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult under the Adults with Incapacity (Scotland) Act 2000 (asp 4);

Financial Services Act 1986 (c. 60)

20

In section 45(1)(d) of the Financial Services Act 1986 at the end there shall be added “or when acting in the exercise of his functions as Public Guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4);".

Access to Health Records Act 1990 (c. 23)

21

In section 3 of the Access to Health Records Act 1990, in subsection (3) after paragraph (e) there shall be inserted—

(ee) where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act on behalf of the patient under that Act.

Child Support Act 1991 (c. 48)

22

In section 50 of the Child Support Act 1991 in subsection (8)(c) for paragraphs (i) and (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults with Incapacity (Scotland) Act 2000 (asp 4).".

23

In section 123 of the Social Security Administration Act 1992 in subsection (10)(c) for paragraphs (i) and (ii) there shall be substituted “a guardian or other person entitled to act on behalf of the person under the Adults with Incapacity (Scotland) Act 2000 (asp 4).".

Health Service Commissioners Act 1993 (c. 46)

24

In section 7A of the Health Service Commissioners Act 1993 after “patients)" there shall be inserted “ or ”, “or 50 (orders discharging patients from guardianship)" shall be repealed, and at the end there shall be inserted “ or section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) ”.

Clean Air Act 1993 (c. 11)

25

In section 64 of the Clean Air Act 1993 in subsection (1) in the definition of “owner" for “tutor or curator" there shall be substituted “ or person entitled to act as the legal representative of a person under disability by reason of nonage or mental or other incapacity ”.

Criminal Procedure (Scotland) Act 1995 (c. 46)

26

(1) In section 57 of the Criminal Procedure (Scotland) Act 1995—

(a) in subsection (2)(c) for first “person" there shall be substituted “ person’s personal welfare ”;

(b) in subsection (4) after “58(1)," there shall be inserted “ 58(1A), ”;

(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this section.

(2) In section 58 of that Act—

(a) for subsection (1) there shall be substituted—

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