Adults with Incapacity (Scotland) Act 2000

(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court— (a) is satisfied on the written or oral evidence of two medical practitioners (complying with section 61 of this Act) that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the offender; (b) is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this subsection, the court may, subject to subsection (2) below, by order authorise his admission to and detention in such hospital as may be specified in the order. (1A) Where a person is convicted as mentioned in subsection (1) above and the court is satisfied— (a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in section 58(1)(a) of that Act apply in relation to the offender; (b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his personal welfare to be safeguarded or promoted, the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the guardianship of such local authority or of such other person approved by a local authority as may be specified in the order.

;

• (b) in subsections (2), (3) and (10) for “subsection (1)" there shall be substituted “ subsection (1) or (1A) ”;

• (c) in subsections (5) and (7) after “subsection (1)" there shall be inserted “ or paragraph (a) of subsection (1A), ”;

• (d) for subsection (6) there shall be substituted—

(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied— (a) on the report of a mental health officer (complying with any requirements imposed by section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the general appropriateness of the order sought, based on an interview and assessment of the person carried out not more than 30 days before it makes the order, that it is necessary in the interests of the personal welfare of the person that he should be placed under guardianship; (b) that any person nominated to be appointed a guardian is suitable to be so appointed; (c) that the authority or person is willing to receive that person into guardianship; and (d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4), in force relating to the person.

;

• (e) at the end there shall be added—

(11) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (1) of this section.

.

• (3) After section 60A of that Act there shall be inserted—

(60B) The court may instead of making a hospital order under section 58(1) of this Act or a guardianship order under section 57(2)(c) or 58(1A) of this Act, make an intervention order (as defined in section 53(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) where it considers that it would be appropriate to do so.

.

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

SCHEDULE 6

Applications and other proceedings and appeals

Intimation not required in certain circumstances

Creation of continuing power of attorney

16A

Where a document confers both—

• (a) a continuing power of attorney; and

• (b) a welfare power of attorney,

the validity requirements imposed by sections 15(3)(c) and 16(3)(c) may be satisfied by incorporating a single certificate which certifies the matters set out in those provisions.

22A

• (1) The granter of a continuing or welfare power of attorney may revoke the power of attorney (or any of the powers granted by it) after the document conferring the power of attorney has been registered under section 19 by giving a revocation notice to the Public Guardian.

• (2) A revocation notice shall be valid only if it is expressed in a written document which—

• (a) is subscribed by the granter; and

• (b) incorporates a certificate in the prescribed form by a practising solicitor or by a member of another prescribed class that—

• (i) he has interviewed the granter immediately before the granter subscribed the document;

• (ii) he is satisfied, either because of his own knowledge of the granter or because he has consulted another person (whom he names in the certificate) who has knowledge of the granter, that at the time the revocation is made the granter understands its effect;

• (iii) he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates the revocation of the power.

• (3) The Public Guardian, on receiving a revocation notice, shall—

• (a) enter the prescribed particulars of it in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be; and

• (b) notify—

• (i) the continuing or welfare attorney; and

• (ii) where it is the welfare attorney who is notified, the local authority and the Mental Welfare Commission.

• (4) A revocation has effect when the revocation notice is registered under this section.

• (5) No liability shall be incurred by any person who acts in good faith in ignorance of the revocation of a power of attorney under this section. Nor shall any title to heritable property acquired by such a person be challengeable on that ground alone.

PART 3 — ACCOUNTS AND FUNDS

Application for authority to intromit

Part 3 — Accounts and funds

Purposes and application of Part

Continuing and welfare power of attorney: accompanying certificate

24A

• (1) This Part makes provision for the authorisation of persons by the Public Guardian to intromit with the funds of an adult for the purposes mentioned in subsection (2).

• (2) Those purposes are—

• (a) the payment of central and local government taxes for which the adult is responsible;

• (b) the provisions of sustenance, accommodation, fuel, clothing and related goods and services for the adult;

• (c) the provision of other services provided for the purposes of looking after or caring for the adult;

• (d) the settlement of debts owed by or incurred in respect of the adult, including any prescribed fees charged by the Public Guardian in connection with an application under this Part;

• (e) the payment for the provision of items other than those mentioned in paragraphs (a) to (d) such as the Public Guardian may, in any case, authorise.

24B

• (1) An application to the Public Guardian under this Part may be made only in relation to an adult who is incapable in relation to decisions about, or of safeguarding the adult's interests in, the funds to which the application relates.

• (2) But an application may not be made in the case of an adult in relation to whom—

• (a) there is a guardian of the type mentioned in section 33(1)(a) with powers relating to the funds in question;

• (b) there is a continuing attorney with powers relating to the funds in question; or

• (c) an intervention order relating to the funds in question has been granted.

Authority to take preliminary steps

24C

• (1) This section applies where a person—

• (a) believes than an adult holds funds in an account in the adult's sole name; but

• (b) cannot make an application under section 25 or section 26G because the person does not know—

• (i) where the account is held;

• (ii) the account details;

• (iii) how much is held in the account; or

• (iv) any other information needed to complete the application.

• (2) Where this section applies, the person may apply to the Public Guardian for a certificate authorising any fundholder to provide the person with such information as the person may reasonably require in order to make an application under section 25 or 26G.

• (3) Where the Public Guardian grants an application under subsection (2), the Public Guardian must issue the certificate to the applicant.

• (4) A fundholder presented with a certificate issued under subsection (3) is not prevented by—

• (a) any obligation as to secrecy; or

• (b) any other restriction on disclosure of information,

from providing the person who presents the certificate to it with such information as the person may reasonably require in order to make an application under section 25 or 26G about funds held by it on behalf of the adult.

24D

• (1) This section applies where—

• (a) a person believes that—

• (i) an adult holds funds;

• (ii) an adult is entitled to income or other payments or is likely to become so entitled; or

• (iii) a fundholder holds funds on behalf of an adult; but

• (b) the adult does not have a suitable account in the adult's sole name in which the funds, income or other payments can be placed for the purposes of intromitting with the adult's funds under this Part.

• (2) Where this section applies, the person may apply to the Public Guardian for a certificate authorising the opening of an account in the adult's name for the purpose of intromitting with the adult's funds.

• (3) Where the Public Guardian grants an application under subsection (2), the Public Guardian must issue the certificate to the applicant.

• (4) The certificate issued under subsection (3) may specify the kind of account which may be opened by a fundholder.

• (5) A fundholder presented with a certificate issued under subsection (3) may open an account in the adult's name.

• (6) But, if the certificate specifies a kind of account, the fundholder may open only an account of the type specified.

• (7) On an account being opened in pursuance of subsection (5), the applicant must notify prescribed particulars of the account to the Public Guardian.

Withdrawal certificates

26A

• (1) A withdrawal certificate may—

• (a) authorise the transfer of funds—

• (i) from the adult's current account to the designated account;

• (ii) from the adult's current account to the adult's second account;

• (iii) from the designated account to the adult's second account;

• (b) authorise the continuance or making of arrangements for the regular or occasional payment of funds from the adult's current account for specified purposes (for example: by standing order or direct debit);

• (c) authorise the withdrawal of funds from the designated account for specified purposes;

• (d) place limits on the amount of funds that may be so transferred, paid or withdrawn.

• (2) But such a certificate does not authorise a transfer of funds or payment that would cause—

• (a) the adult's current account;

• (b) the adult's second account; or

• (c) the designated account,

to become overdrawn.

• (3) If any of the accounts mentioned in paragraphs (a) to (c) of subsection (2) is overdrawn, the fundholder of that account has a right of relief against the withdrawer.

• (4) In subsection (1)(b), “specified” means specified in the certificate of appointment.

Joint and reserve withdrawers

26B

• (1) This section applies where an individual has or individuals have been appointed as a withdrawer in relation to an adult.

• (2) Where this sections applies, another individual may apply to the Public Guardian for appointment as a joint withdrawer.

• (3) An application under subsection (1) must be signed by the existing withdrawer.

• (4) Where the Public Guardian grants an application under subsection (1), the Public Guardian must—

• (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

• (b) issue a certificate of authority (a “withdrawal certificate”) to the existing withdrawer and the applicant.

• (5) Subject to sections 31(2) and 31A, a certificate issued under subsection (4)(b) is valid until the date on which the withdrawal certificate held by the existing withdrawer would cease to be valid under section 31(1) or 31E(6), as the case may be (regardless of any subsequent extension, reduction, termination or suspension of the existing withdrawer's authority).

• (6) In this section, “the existing withdrawer” means the individual or individuals mentioned in subsection (1).

• (7) In this Part, where two or more individuals are appointed as withdrawers, each individual is referred to as a “joint withdrawer”.

26C

• (1) Joint withdrawers may, subject to subsection (2), exercise their functions individually, and each joint withdrawer is liable for any loss incurred by the adult arising out of—

• (a) the joint withdrawer's own acts or omissions; or

• (b) the joint withdrawer's failure to take reasonable steps to ensure that another joint withdrawer does not breach any duty of care or fiduciary duty owed to the adult.

• (2) Where more than one joint withdrawer is liable under subsection (1), they are liable jointly and severally.

• (3) A joint withdrawer must, before exercising any function conferred on the joint withdrawer, consult the other joint withdrawers, unless—

• (a) consultation would be impracticable in the circumstances; or

• (b) the joint withdrawers agree that consultation is not necessary.

• (4) Where joint withdrawers disagree as to the exercise of their functions, one or more of them may apply to the Public Guardian for directions.

• (5) Directions given by the Public Guardian in pursuance of subsection (4) may be appealed to the sheriff, whose decision is final.

• (6) Where there are joint withdrawers—

• (a) a third party in good faith is entitled to rely on the authority to act of any one or more of them; and

• (b) section 31A(5) (interim authority) only applies where the Public Guardian terminates the authority of all of the joint withdrawers.

Reserve withdrawers: authority to act

26D

• (1) In any case where an individual is issued with a withdrawal certificate (“a main withdrawer”), the Public Guardian may, on an application by the main withdrawer, appoint another individual (“a reserve withdrawer”) to act as a withdrawer in the event of the main withdrawer temporarily becoming unable to act.

• (2) An application for appointment of a reserve withdrawer may be made at the time of the application under section 25 for a withdrawal certificate or at any later time.

• (3) The application for appointment as a reserve withdrawer must be signed by the proposed reserve withdrawer.

• (4) Where the Public Guardian grants the application, the Public Guardian must enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii).

26E

• (1) Where—

• (a) a reserve withdrawer has been appointed under section 26D; and

• (b) the main withdrawer considers that the main withdrawer is or will be unable to carry out some or all of the main withdrawer's functions under this Part,

the main withdrawer may notify the Public Guardian that the main withdrawer wishes the Public Guardian to authorise the reserve withdrawer to intromit with the adult's funds for a specified period.

• (2) Where a reserve withdrawer becomes aware that the main withdrawer is unable—

• (a) to carry out some or all of the main withdrawer's functions in relation to intromitting with the funds concerned; and

• (b) to notify the Public Guardian under subsection (1),

the reserve withdrawer may apply to the Public Guardian for a certificate authorising the reserve withdrawer to intromit with the adult's funds for a specified period.

• (3) The Public Guardian, on being notified under subsection (1), must or, on an application under subsection (2), may—

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

• (b) issue a certificate of authority (a “withdrawal certificate”) to the reserve withdrawer; and

• (c) notify the adult and the main withdrawer.

• (4) The certificate issued under subsection (3)(b) is—

• (a) valid for the specified period, or such shorter period as the Public Guardian thinks fit, but does not extend beyond the date on which the validity of the withdrawal certificate issued to the main withdrawer would cease under section 31(1) or 31E(6), as the case may be;

• (b) suspended during any period when the authority of the main withdrawer is suspended;

• (c) terminated if the authority of the main withdrawer is terminated.

• (5) The main withdrawer and the reserve withdrawer are liable (jointly and severally) for any loss incurred by the adult arising out of the reserve withdrawer's acts or omissions.

• (6) In this section, “specified” means specified in the notice or, as the case may be, application.

Variation of withdrawer's authority

26F

• (1) The Public Guardian may—

• (a) on the application of a withdrawer, or

• (b) if notified under section 30A,

vary the withdrawal certificate (the “existing certificate”) issued to the withdrawer.

• (2) But a withdrawal certificate may not be varied under this section so as to alter the period of validity of the certificate.

• (3) Where the Public Guardian decides to vary the withdrawal certificate under subsection (1), the Public Guardian must—

• (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

• (b) issue a varied withdrawal certificate to the withdrawer.

• (4) The existing certificate ceases to be valid on the date the varied certificate is issued under subsection (3)(b).

Authority to transfer funds

26G

• (1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the transfer of a specified sum from a specified account (“the original account”) in an adult's sole name to—

• (a) the designated account;

• (b) the adult's current account;

• (c) the adult's second account; or

• (d) such other account as may be specified.

• (2) Those persons are—

• (a) a withdrawer;

• (b) a person who has applied for a withdrawal certificate under section 25;

• (3) An application under subsection (1) may also seek authority—

• (a) to close the original account;

• (b) to terminate an arrangement for the payment of funds from the original account to another account (for example: a standing order or direct debit).

• (4) Where the Public Guardian grants an application under subsection (1), the Public Guardian must—

• (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

• (b) issue the certificate to the applicant.

• (5) In this section, “specified” means specified in the application under subsection (1) or, as the case may be, in the certificate granted under subsection (4).

Applications: general

27A

• (1) An application under section 24C, 24D, 25, or 26B must be countersigned by a person who must declare in the application that—

• (a) the person knows the applicant and has known the applicant for at least one year prior to the date of the application;

• (b) the person is not any of the following—

• (i) a relative of or person residing with the applicant or the adult;

• (ii) a director or employee of the fundholder;

• (iii) a solicitor acting on behalf of the adult or any other person mentioned in this paragraph in relation to any matter under this Act;

• (iv) the medical practitioner who has issued the certificate under section 27B in connection with the application;

• (v) a guardian of the adult;

• (vi) a welfare or continuing attorney of the adult;

• (vii) a person who is authorised under an intervention order in relation to the adult;

• (c) the person believes the information contained in the application to be true; and

• (d) the person believes the applicant to be a fit and proper person to intromit with the adult's funds.

• (2) An application under section 26D (reserve withdrawers) must be countersigned by a person who must declare in the application the matters set out in paragraphs (a) to (d) of subsection (1) but with references in those paragraphs to “applicant” read as references to the proposed reserve withdrawer.

• (3) This section does not apply to an application made by a body.

27B

An application under section 24C, 24D, or 25 must be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—

• (a) incapable in relation to decisions about; or

• (b) incapable of acting to safeguard or promote the adult's interests in,

the adult's funds.

27C

• (1) On receipt of a competent application under section 24C, 24D, 25, 26B, 26D, 26F or 26G, the Public Guardian must intimate the application to—

• (a) the adult;

• (b) the adult's nearest relative;

• (c) the adult's primary carer;

• (d) the adult's named person;

• (e) where the applicant is—

• (i) the individual mentioned in both paragraph (b) and (c); or

• (ii) a body other than a local authority,

the chief social work officer of the local authority; and

• (f) any other person who the Public Guardian considers has an interest in the application.

• (2) A competent application is an application which complies with section 27 and, where appropriate, sections 27A and 27B.

27D

• (1) The Public Guardian may grant an application made under section 24C, 24D, 25, 26B or 26D only if satisfied that—

• (a) the applicant in an application under section 24C, 24D, 25 or 26B, or

• (b) the proposed reserve withdrawer in an application under section 26D,

is a fit and proper person to intromit with the funds of the adult.

• (2) In deciding whether a person is fit and proper, the Public Guardian must have regard to any guidance issued in relation to that matter by the Scottish Ministers.

27E

• (1) The Public Guardian must not grant an application under section 24C, 24D, 25, 26B, 26D, 26F or 26G without affording to any person who receives intimation of the application under section 27C or any other person who wishes to object an opportunity to make representations.

• (2) Where the Public Guardian proposes to refuse the application the Public Guardian must intimate the proposed decision to the applicant and advise the applicant of the prescribed period within which the applicant may object to the proposed refusal.

• (3) The Public Guardian must not refuse an application without affording to the applicant, if the applicant objects, an opportunity to make representations.

27F

• (1) The Public Guardian may remit an application under section 24C, 24D, 25, 26B, 26D, 26F or 26G for determination by the sheriff at the instance of—

• (a) the Public Guardian;

• (b) the applicant; or

• (c) any person who objects to the granting of the application.

• (2) The sheriff's decision on an application remitted under subsection (1) is final.

27G

• (1) Where a person who has made an application under section 24C, 24D or 25 in respect of an adult makes another application under any of those sections in respect of the same adult, the Public Guardian may disapply any of the provisions in sections 27 to 27B to that application.

• (2) Where the Public Guardian is to issue more than one certificate under this Part to the same person, the Public Guardian may instead issue a combined certificate to the person.

• (3) References in this Part to a withdrawal certificate or other certificate issued under this Part include references to any combined certificate issued by the Public Guardian instead of the withdrawal or other certificate.

Fundholders

28A

The fundholder of an original account may act on the instructions of a withdrawer to the extent authorised by the certificate issued to the withdrawer under section 26G(4).

Withdrawers

30A

• (1) A withdrawer must notify the Public Guardian—

• (a) of any change in the withdrawer's address; and

• (b) of any change in the address of the adult.

• (2) A notice under subsection (1) must be given within 7 days of the date of the change to which it relates.

30B

• (1) A withdrawer must keep records of the exercise of the withdrawer's powers.

• (2) The Public Guardian may make inquiries from time to time as to the manner in which a withdrawer has exercised the withdrawer's functions under this Part.

Duration etc. of authority

31A

• (1) The Public Guardian may suspend or terminate the authority of a withdrawer under a withdrawal certificate.

• (2) The Public Guardian must without delay intimate the suspension or termination to—

• (a) the withdrawer whose authority is suspended or terminated;

• (b) any other joint withdrawer;

• (c) any reserve withdrawer; and

• (d) the fundholder of the designated account; and

• (e) such other persons as the Public Guardian thinks fit.

• (3) A suspension or termination under subsection (1) suspends or, as the case may be, terminates all operations on the designated account by the withdrawer whose authority is suspended or terminated.

• (4) The Public Guardian must on suspending or terminating the authority of the withdrawer enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii).

• (5) The Public Guardian may on terminating the authority of the withdrawer issue to the withdrawer an interim withdrawal certificate to continue to intromit with the adult's funds for a period not exceeding 4 weeks from the date of the termination.

31B

• (1) This section applies to an application under section 25 if condition A or B is satisfied.

• (2) Condition A is that the application is made by a person holding an existing withdrawal certificate.

• (3) Condition B is that—

• (a) the main withdrawer has died or become incapable or the main withdrawer's authority under this Part has been terminated; and

• (b) the application is made, without undue delay, by an individual who was the reserve withdrawer at the time of the death, incapacity, or termination, as the case may be.

• (4) Where this section applies, the Public Guardian may disapply any of the provisions in sections 26(1), 27A and 27B to an application to which this section applies (but may require the applicant to provide such other information as the Public Guardian requires to determine the application).

• (5) Where condition A is satisfied in relation to an application under section 25, the existing withdrawal certificate will continue to be valid until the application is determined.

• (6) Where an application to which this section applies is granted, the existing withdrawal certificate ceases to be valid.

31C

• (1) A certificate issued under section 24C, 24D or 26G is valid for such period as it may specify.

• (2) But the Public Guardian may cancel the certificate at any time before the end of any period so specified.

• (3) The Public Guardian must without delay intimate such a cancellation to—

• (a) the person to whom the certificate was issued,

• (b) where the certificate was issued under section 26G, the fundholder of the original account, and

• (c) such other persons as the Public Guardian thinks fit.

Appeals

31D

• (1) A decision of the Public Guardian—

• (a) to grant or refuse an application under section 24C, 24D, 25, 26B, 26D, 26E, 26F or 26G;

• (b) to refuse to remit an application to the sheriff under section 27F;

• (c) to reduce or extend the period of validity of a withdrawal certificate under section 31(2); or

• (d) to suspend or terminate the authority of a withdrawer under section 31A,

may be appealed to the sheriff.

• (2) The sheriff's decision on an appeal under subsection (1) is final.

Transition from guardianship

31E

• (1) This section applies where—

• (a) there is a guardian with powers relating to the property or financial affairs of an adult; and

• (b) an application is made under section 25 in relation to the adult's funds.

• (2) Section 27A does not apply to the application if it is made by the adult's guardian.

• (3) The Public Guardian may disapply section 27B to the application.

• (4) Where—

• (a) it appears to the Public Guardian that, if the application were granted, the adult's interests in the adult's property and affairs can be satisfactorily safeguarded or promoted otherwise than by the existing guardianship; and

• (b) the Public Guardian proposes to grant the application,

the Public Guardian must initiate the recall of the guardianship under section 73.

• (5) The Public Guardian may not grant the application unless the guardianship is recalled.

• (6) Where the Public Guardian grants the application, the withdrawal certificate issued to the withdrawer is valid for such period as the Public Guardian specifies at the time the Public Guardian grants the application.

• (7) This section does not apply, and no application under this Part may be made, in the case of an adult if there is a person who is—

• (a) appointed or otherwise entitled under the law of any country other than Scotland to act as a guardian (however called) in relation to the adult's property and financial affairs during the adult's incapacity; and

• (b) recognised by the law of Scotland as the adult's guardian.

• (8) Despite subsection (7), no liability is incurred by any person who acts in good faith under this Part in ignorance of any guardian of the type mentioned in that subsection.

Attorney not obliged to act in certain circumstances

Authority of persons responsible for medical treatment

Intervention orders

56A

Where a person authorised under an intervention order dies, the person's personal representatives shall, if aware of the existence of the authority, notify the Public Guardian who shall—

• (a) notify—

• (i) the adult;

• (ii) the local authority; and

• (iii) in a case where the adult's incapacity is by reason of, or reasons which include, mental disorder and the intervention order relates to the adult's personal welfare or factors including it, the Mental Welfare Commission; and

• (b) enter prescribed particulars in the register maintained under section 6(2)(b)(v).

73A

• (1) This section applies where—

• (a) a local authority's chief social work officer is appointed as a guardian; and

• (b) either—

• (i) the local authority wish to recall their chief social work officer's guardianship powers at their own instance; or

• (ii) another person (including the adult himself) applies to the local authority for such a recall.

• (2) Where this section applies—

• (a) the local authority shall, for the purposes of section 73(5), treat the Public Guardian and the Mental Welfare Commission as persons whom they consider to have an interest in the recall of the guardian's powers; and

• (b) if the Public Guardian, the Mental Welfare Commission or any other person to whom intimation is given under section 73(5) objects to the recall of the guardian's powers, the local authority—

• (i) shall not recall the guardian's powers; but

• (ii) shall instead remit the matter for determination by the sheriff under section 73(8).

75A

The personal representatives of a guardian who dies shall, if aware of the existence of the guardianship, notify the Public Guardian who shall—

• (a) notify—

• (i) the adult;

• (ii) the local authority; and

• (iii) in a case where the adult's incapacity 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;

• (b) enter prescribed particulars in the register maintained under section 6(2)(b)(iv); and

• (c) issue a new certificate of appointment—

• (i) to any surviving joint guardian;

• (ii) where the Public Guardian is satisfied that any substitute guardian appointed in respect of the dead guardian is willing to act and has found caution or given other security if so required, to the substitute guardian.

Guardianship orders: children

79A

Sections 57 to 79 apply in relation to a child who will become an adult within 3 months as they apply in relation to an adult; but no guardianship order made in relation to a child shall have effect until the child becomes an adult.

Future appointment of curator bonis etc. incompetent

81A

• (1) The Public Guardian may, when carrying out an investigation under section 6(2)(c) or (d) or inquiries under section 30B(2)—

• (a) require any person falling within subsection (2) to provide the Public Guardian with—

• (i) the person's records of the exercise of the person's powers in relation to the adult to whom the investigation relates; and

• (ii) such other information relating to the exercise of those powers as the Public Guardian may reasonably require,

• (b) require any person who holds (or who has held) funds on behalf of the adult to whom the investigation relates to provide the Public Guardian with—

• (i) its records of the account; and

• (ii) such other information relating to those accounts as the Public Guardian may reasonably require.

• (2) A person falls within this subsection if the person is or has been—

• (a) a continuing attorney appointed by the adult to whom the investigation relates;

• (b) a withdrawer with authority to intromit with that adult's funds;

• (c) a person authorised under an intervention order to act in relation to that adult; or

• (d) that adult's guardian.

• (3) A fundholder may charge a reasonable fee for complying with a requirement under subsection (1)(b) and may recover that fee from the account concerned.

Application of Part 4

Application for authority to intromit

Adults in respect of whom applications may be made

Reserve withdrawers: applications

Reimbursement and remuneration of guardian

Improvement of Land Act 1864 (c.114)

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

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

Recall of powers of guardian

Medicines Act 1968 (c.67)

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

Insolvency Act 1986 (c.45)

Clean Air Act 1993 (c.11)

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

Editorial notes