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Adults with Incapacity (Scotland) Act 2000

Current text a fecha 2003-03-06

PART 1 — GENERAL

General

General principles and fundamental definitions

1

in so far as it is reasonable and practicable to do so; and

Judicial proceedings

Applications and other proceedings and appeals

2

Powers of sheriff

3

as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him to be appropriate.

make an order varying the terms of an order granted under subsection (2)(a).

Power of Court of Session or sheriff with regard to nearest relative

4

Safeguarding of interests in Court of Session appeals or proceedings

5

The Public Guardian

The Public Guardian and his functions

6

in which he shall enter any matter which he is required to enter under this Act and any other matter of which he becomes aware relating to the existence or scope of the power, authorisation or order as the case may be;

The Public Guardian: further provision

7

Expenses in court proceedings

Expenses in court proceedings

8

The Mental Welfare Commission

Functions of the Mental Welfare Commission

9

Local authorities

Functions of local authorities

10

Intimation

Intimation not required in certain circumstances

11

Investigations

Investigations

12

the Public Guardian, Mental Welfare Commission or local authority, as the case may be, may take such steps, including the making of an application to the sheriff, as seem to him or them to be necessary to safeguard the property, financial affairs or personal welfare, as the case may be, of the adult.

Codes of practice

Codes of practice

13

of their functions under this Act and as to such other matters arising out of or connected with this Act as the Scottish Ministers consider appropriate.

Appeal against decision as to incapacity

Appeal against decision as to incapacity

14

A decision taken for the purposes of this Act, other than by the sheriff, as to the incapacity of an adult may be appealed by—

to the sheriff or, where the decision was taken by the sheriff, to the sheriff principal and thence, with the leave of the sheriff principal, to the Court of Session.

PART 2 — CONTINUING POWERS OF ATTORNEY AND WELFARE POWERS OF ATTORNEY

Creation of continuing power of attorney

15

Creation and exercise of welfare power of attorney

16

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.

Attorney not obliged to act in certain circumstances

17

A continuing or welfare attorney shall not be obliged to do anything which would otherwise be within the powers of the attorney if doing it would, in relation to its value or utility, be unduly burdensome or expensive.

Power of attorney not granted in accordance with this Act

18

A power of attorney granted after the commencement of this Act which is not granted in accordance with section 15 or 16 shall have no effect during any period when the granter is incapable in relation to decisions about the matter to which the power of attorney relates.

Registration of continuing or welfare power of attorney

19

Powers of sheriff

20

and “continuing attorney” and “welfare attorney” shall be construed accordingly.

Records: attorneys

21

A continuing or welfare attorney shall keep records of the exercise of his powers.

Notification to Public Guardian

22

and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(i) or (ii) as the case may be and shall notify the granter (in the case of an event mentioned in paragraph (a) or (d)) and, where the power of attorney relates to the personal welfare of the adult, both the local authority and (in a case where the incapacity of the granter is by reason of, or reasons which include, mental disorder) the Mental Welfare Commission.

Resignation of continuing or welfare attorney

23

accompanies the notice.

Termination of continuing or welfare power of attorney

24

nor shall any title to heritable property acquired by such a person be challengeable on those grounds alone.

PART 3 — ACCOUNTS AND FUNDS

Authority to intromit with funds

25

Application for authority to intromit

26

the funds;

must not be overdrawn; and if either account is overdrawn, the fundholder of that account shall have a right of relief against the withdrawer.

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

Notification of change of address

27

After the name of a withdrawer has been registered under section 26 the withdrawer shall notify the Public Guardian—

and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(iii).

Purposes of intromissions with funds

28

Withdrawal and use of funds

29

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

Records and inquiries

30

Duration and termination of registration

31

and such suspension or termination shall have the effect of suspending or, as the case may be, terminating all operations on that account.

but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of the coming to an end of a withdrawer’s authority under this subsection.

Joint accounts

32

Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes incapable in relation to decisions about, or of safeguarding his interests in, the funds in the account, any other joint account holder may continue to operate the account unless—

Transfer of funds

33

Disapplication of Part 3

34

but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any such appointment or grant.

PART 4 — MANAGEMENT OF RESIDENTS’ FINANCES

Application of Part 4

35

that it shall not apply.

Registration for purposes of managing residents' finances

36

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

Residents whose affairs may be managed

37

Financial procedures and controls in registered establishments

38

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

Matters which may be managed

39

and in this Part these matters, or any of them, are referred to as residents’ affairs; and cognate expressions shall be construed accordingly.

Supervisory bodies

40

and any reference in this Part to an authorised establishment in relation to a supervisory body is a reference to an authorised establishment for which the supervisory body is responsible.

Duties and functions of managers of authorised establishment

41

The managers of an authorised establishment shall, in relation to residents whose affairs they are managing under section 39—

Authorisation of named manager to withdraw from resident’s account

42

Statement of resident’s affairs

43

Resident ceasing to be resident of authorised establishment

44

the local authority of the area in which they expect him to reside.

Appeal, revocation etc

45

Disapplication of Part 4

46

but no liability shall be incurred by any person who acts in good faith under this Part in ignorance of any guardian, continuing attorney, other person or intervention order.

PART 5 — MEDICAL TREATMENT AND RESEARCH

Authority of persons responsible for medical treatment

47

medical treatment authorised by subsection (2) shall not be given unless it is authorised by any other enactment or rule of law for the preservation of the life of the adult or the prevention of serious deterioration in his medical condition.

Exceptions to authority to treat

48

Medical treatment where there is an application for intervention or guardianship order

49

Medical treatment where guardian etc. has been appointed

50

Authority for research

51

Appeal against decision as to medical treatment

52

Any decision taken for the purposes of this Part, other than a decision by a medical practitioner under section 50, as to the medical treatment of the adult may be appealed by any person having an interest in the personal welfare of the adult to the sheriff and thence, with the leave of the sheriff, to the Court of Session.

PART 6 — INTERVENTION ORDERS AND GUARDIANSHIP ORDERS

Intervention orders

Intervention orders

53

they shall apply under this section for an order.

require the person authorised under the order to find caution.

make an order varying the terms of, or recalling, the intervention order or any other order made for the purposes of the intervention order.

Records: intervention orders

54

A person authorised under an intervention order shall keep records of the exercise of his powers.

Notification of change of address

55

After particulars relating to an intervention order are entered in the register under section 53 the person authorised under the intervention order shall notify the Public Guardian—

and the Public Guardian shall enter prescribed particulars in the register maintained by him under section 6(2)(b)(v) and notify the local authority and (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 which include it) the Mental Welfare Commission.

Registration of intervention order relating to heritable property

56

Guardianship orders

Application for guardianship order

57

they shall apply under this section for an order.

whichever is the earlier.

Disposal of application

58

he may grant the application.

require an individual appointed as guardian to find caution.

Who may be appointed as guardian

59

Renewal of guardianship order by sheriff

60

(4) Where the sheriff grants an application under section 60, he may continue the guardianship order for a period of 5 years or for such other period (including an indefinite period) as, on cause shown, he may determine.

.

Registration of guardianship order relating to heritable property

61

Joint and substitute guardians

Joint guardians

62

and where more than one such guardian is so liable they shall be liable jointly and severally.

Substitute guardian

63

require an individual appointed as substitute guardian to find caution.

Functions etc. of guardian

Functions and duties of guardian

64

be entitled to use the capital and income of the adult’s estate for the purpose of purchasing assets, services or accommodation so as to enhance the adult’s quality of life.

every month as to his exercise of those powers.

Records: guardians

65

A guardian shall keep records of the exercise of his powers.

Gifts

66

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

Effect of appointment and transactions of guardian

67

in so far as the estate, payment or matter falls within the scope of the guardian’s authority.

but where a guardian has acted as mentioned in paragraph (a) and is not otherwise in breach of any requirement of this Act relating to such guardians, he shall be entitled to be reimbursed from the estate of the adult in respect of any loss suffered by him in consequence of a claim made upon him personally by virtue of this subsection.

Reimbursement and remuneration of guardian

68

and where the application relates to the personal welfare and to the property or financial affairs of the adult the sheriff shall, in determining the application, apportion the cost as he thinks fit.

but shall not be payable to a local authority in respect of the exercise by their chief social work officer of functions relating to the personal welfare of the adult.

and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the estate.

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

Forfeiture of guardian’s remuneration

69

Where a guardian is in breach of any duty of care, fiduciary duty or obligation imposed by this Act the sheriff may, on an application being made to him by any person claiming an interest in the property, financial affairs or personal welfare of the adult, order the forfeiture (in whole or in part) of any remuneration due to the guardian.

Non-compliance with decisions of guardian with welfare powers

70

Termination and variation of guardianship and replacement, removal or resignation of guardian

Replacement or removal of guardian or recall of guardianship by sheriff

71

and where an application under this subsection is granted, the sheriff clerk shall send a copy of the interlocutor to the Public Guardian.

require an individual appointed as guardian or the substitute guardian to find caution.

Discharge of guardian with financial powers

72

the Public Guardian may, on an application by the former guardian or, if the former guardian has died, his representative, grant a discharge in respect of the former guardian’s actings and intromissions with the estate of the adult.

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

Recall of powers of guardian

73

to the adult, his nearest relative, his primary carer and any person who he or they consider has an interest in the recall of the powers and advise them of the prescribed period within which they may object to such recall; and he or they shall not recall the powers without affording to any objector an opportunity of being heard.

may be appealed to the sheriff, whose decision shall be final, and the decision of the Public Guardian, Mental Welfare Commission or local authority as to the recall of the powers of a guardian shall remain in force pending the final determination of the appeal.

Variation of guardianship order

74

require the guardian to find caution.

shall be made under section 57.

Resignation of guardian

75

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

Change of habitual residence

76

Termination of authority to intervene and guardianship on death of adult

Termination of authority to intervene and guardianship on death of adult

77

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

78

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.

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—

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

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.

Limitation of liability

82

Offence of ill-treatment and wilful neglect

83

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

84

(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

Interpretation

87

then that person shall be treated as the nearest relative.

Continuation of existing powers, minor and consequential amendments and repeals

88

Citation and commencement

89

SCHEDULE 1

1

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

and in paragraph (d) above “care service" and “limited registration service" have the same meanings as in the Regulation of Care (Scotland) Act 2001.

2

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

SCHEDULE 2

Management plan

1

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

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

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

Purchase or disposal of accommodation

6

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

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

Accounting and auditing

7

Approval of accounts

8

SCHEDULE 3

General

1

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.

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.

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

Appropriate sheriff

2

Applicable law

3
4
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
8
9
10

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

11

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 “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

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.

Guardians

2

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

Managers

5

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

6

the Public Guardian has determined that it should apply.

Transitional Provisions

7

Until Part 6 comes into force—

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

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

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

6

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

7

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

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

;

National Assistance Act 1948 (c. 29)

8

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

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 ”.

Social Work (Scotland) Act 1968 (c. 49)

10

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

11

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

Medicines Act 1968 (c. 67)

12

In section 72 of the Medicines Act 1968—

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—

(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

.

.

application for admission has the meaning assigned to it by section 18 of this Act

;

guardian includes 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;

;

welfare attorney includes 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;

.

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).".

Social Security Administration Act 1992 (c. 5)

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

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

.

(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.

;

(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.

;

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

.

(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.

.

SCHEDULE 6

General principles and fundamental definitions

Intimation not required in certain circumstances

Creation of continuing power of attorney

16A

Where a document confers both—

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

PART 3 — ACCOUNTS AND FUNDS

Authority to intromit with funds

Part 3 — Accounts and funds

Purposes and application of Part

Intromissions with funds

24A
24B

Authority to take preliminary steps

24C

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

Withdrawal certificates

26A

to become overdrawn.

Joint and reserve withdrawers

26B
26C

Reserve withdrawers: applications

26D
26E

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.

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.

Variation of withdrawer's authority

26F

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

Authority to transfer funds

26G

Applications: general

27A
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—

the adult's funds.

27C

the chief social work officer of the local authority; and

27D

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

27E
27F
27G

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
30B

Duration etc. of authority

31A
31B
31C

Appeals

31D

may be appealed to the sheriff.

Transition from guardianship

31E

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

Application of Part 4

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—

73A
75A

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

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

Management plan

General

Curators and tutors

General

Judicial Factors Act 1849 (c.51)

Improvement of Land Act 1864 (c.114)

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

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

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

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

[^c10141671]: S. 6 wholly in force at 1.4.2002; s. 6 not in force at Royal Assent see s. 89(2); s. 6(1)(2)(b)(i)-(iii)(c)(i)(ii)(d)(e) in force for specified purposes and 6(2)(f)and (3)(b) wholly in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; s. 6 in force in so far as not already in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10141681]: S. 9 wholly in force at 1.4.2002; s. 9(1)(a)-(c)(d)(i)(e)(f)(g)(2) in force for specified purposes and s. 9(3)(b) wholly in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; s. 9 in force in so far as not already in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10141691]: S. 10 wholly in force at 1.4.2002; s. 10 not in force at Royal Assent see s. 89(2); s. 10(1)(e) in force for specified purposes and s. 10(1)(b)(c)(i)(d)(2)(3)(b) (ii)(4)(b) wholly in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; s. 10 in force in so far as not already in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10141701]: S. 12 wholly in force at 1.4.2002; s. 12 not in force at Royal Assent see s. 89(2); s. 12 in force for specified purposes at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; s. 12 in force in so far as not already in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 3

[^c10141711]: S. 24 Wholly in force at 1.4.2002; s. 24 not in force at Royal Assent see s. 89(2); S. 24(1)(4) in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; s. 24 fully in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c19657041]: S. 16A inserted (prosp.) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 57(3), 79

[^c19657161]: S. 22A inserted (prosp.) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 57(7), 79

[^c10141731]: S. 35(1)(a)-(e) substituted (1.4.2002) for s. 35(1)(a)-(g) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(2)(a); S.S.I. 2002/162, art. 2

[^c10141741]: Words in s. 35(2) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(2)(b); S.S.I. 2002/162, art. 2

[^c10141751]: Words in s. 35(3)(b) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(2)(c); S.S.I. 2002/162, art. 2

[^c10141761]: S. 35(6) added (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(2)(d); S.S.I. 2002/162, art. 2

[^c18008931]: S. 36 repealed (1.4.2002) by 2001 asp 8, ss. 80(1), 81(2), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c18054611]: S. 37 wholly in force at 1.10.2003; s. 37 not in force at Royal Assent see s. 89(2); s. 37(2)(9) in force for specified purposes at 6.3.2003 by S.S.I. 2003/136, art. 2; s. 37(2)(9) in force for further specified purposes at 29.5.2003 by S.S.I. 2003/267, art. 2(1); s. 37 in force in so far as not already in force at 1.10.2003 by S.S.I. 2003/267, art. 2(2)

[^c18046551]: S. 37(6) applied (1.10.2003) by The Adults with Incapacity (Management of Residents' Finances) (No. 2) (Scotland) Regulations 2003 (S.S.I. 2003/266), reg. 3(4)

[^c18008961]: S. 38 repealed (1.4.2002) by 2001 asp 8, ss. 80(1), 81(2), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13); S. 38(4) expressed to be repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 331, 333(2)-(4), Sch. 5; S.S.I. 2005/ 161, {art. 3}

[^c18054641]: S. 39 wholly in force 1.10.2003; s. 39 not in force at Royal Assent see s. 89(2); s. 39(3) in force for specified purposes at 6.3.2003 by S.S.I. 2003/136, art. 2; s. 39(3) in force for further specified purposes at 29.5.2003 by S.S.I. 2003/267, art. 2(1); s. 39 in force in so far as not already in force at 1.10.2003 by S.S.I. 2003/267, art. 2(2)

[^c10141791]: S. 40(1)(a)(b) substituted (1.4.2002) for words "from the beginning of the subsection to the end of paragraph (c)" by virtue of 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(3)(a); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10141801]: Word in s. 40(2)(3) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(3)(b); S.S.I. 2002/162, art. 2

[^c10141821]: Words in s. 40(4) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(3)(c); S.S.I. 2002/162, art. 2

[^c18054651]: S. 41 wholly in force at 1.10.2003; s. 41 not in force at Royal Assent; s. 41(d) in force for specified purposes at 6.3.2003 by S.S.I. 2003/136, art. 2; s. 41(d) in force for further specified purposes at 29.5.2003 by S.S.I. 2003/267, art. 2(1); s. 41 in force in so far as not already in force at. 1.10.2003 by S.S.I. 2003/267, art. 2(2)

[^c10141831]: Word in s. 45 substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(4)(a); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10141841]: Words in s. 45 substituted (1.4.2002) for paras. (a) and (b) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(4)(b); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c18022981]: S. 45(2) repealed (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(4)(c); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10141861]: Words in s. 45(3) repealed (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(4)(d); S.S.I. 2002/162, art. 2 (with arts. 3-13)

[^c10141871]: Word in s. 45(6) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(4)(e); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10141721]: Pt. 4 modified (1.4.2003) by 2001 asp 8, ss. 8(1), 81(2); S.S.I. 2003/205, art. 2 (with transitional provisions in art. 3)

[^c19651491]: S. 56A inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 59(3), 79; S.S.I. 2007/334, art. 2(b), Sch. 2 (with savings in arts. 4-6)

[^c19653161]: S. 75A inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 60(15), 79; S.S.I. 2007/334, art. 2(b), Sch. 2 (with savings in arts. 4-6)

[^c19660541]: S. 73A inserted (prosp.) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 60(12), 79

[^c19662771]: S. 79A and preceding cross-heading inserted (prosp.) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 60(16), 79

[^c10141881]: S. 81 partly in force; s. 81 not in force at Royal Assent see s. 89(2); s. 81(1)(a)-(c) in force and s. 81(2) in force for specified purposes at 2.4.2001 and s. 81 in force for further specified purposes by S.S.I. 2001/81, arts. 2, 3, Sch. 1, Sch. 2 (as amended by S.I. 2002/172, art. 2)

[^c19653201]: S. 81A modified (temp.) (20.6.2007) by The Adult Support and Protection (Scotland) Act 2007 (Commencement No. 1, Transitional Provision and Savings) Order 2007 (S.S.I. 2007/334), art. 3

[^c10141891]: S. 82 partly in force; s. 82 not in force at Royal Assent see s. 89(2); s. 82(1) in force for specified purposes and s. 82(2)(b)(c) in force at 2.4.2001 and s. 82 in force for further specified purposes by S.S.I. 2001/81, arts. 2, 3, Sch. 1, Sch. 2 (as amended by S.I. 2002/172, art. 2)

[^c10141901]: Words in s. 84(2) substituted (1.4.2002) by 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(5); S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10141911]: S. 85 wholly in force at 4.11.2003: s. 85 not in force at Royal Assent see s. 89(2); s. 85 in force at 2.4.2001 specified purposes by S.S.I. 2001/81, arts. 2, 3, Schs. 1, 2; s. 85 in force in so far as not already in force at 4.11.2003 by S.S.I. 2003/516, art. 2

[^c10141921]: S. 88 partly in force; s. 88 not in force at Royal Assent see s. 89(2); s. 88 in force at 2.4.2001 and 1.4.2002 for specified purposes by S.S.I. 2001/81, arts. 2, 3, Sch. 1, Sch. 2; s. 88 in force for further specified purposes at 1.10.2003 by S.S.I. 2003/267, art. 2(2)

[^c18043321]: S. 89(2) power partly exercised: different dates appointed for specified provisions by S.S.I. 2001/81, arts. 2, 3, Schs. 1, 2; {S.S.I. 2002/172}, art. 2; {S.S.I. 2002/189}, art. 2; {S.S.I. 2003/136}, art. 2 (as amended by S.S.I. 2003/227 (which revokes art. 2(2) of this S.S.I.)); {S.S.I. 2003/227}, art. 2; {S.S.I. 2003/267}, art. 2; {S.S.I. 2003/516}, art. 2;

[^c19653181]: S. 81A inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 61, 79; S.S.I. 2007/334, art. 2(b), Sch. 2 (with savings in arts. 4-6)

[^c19662831]: Pt. 3 (ss. 24A-33) substituted (prosp.) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 58, 79

[^c10141931]: Sch. 1: words in para. 1 substituted (1.4.2002) "for paragraphs (d) to (g)" by virtue of 2001 asp 8, ss. 79, 81(2), Sch. 3 para. 23(6); S.S.I. 2002/162, art. 2

[^c10141941]: Words in Sch. 2 para. 5(2) substituted (1.12.2001) by S.I. 2001/3649, art. 235(2)

[^c10141951]: Sch. 2 para. 5(2A) inserted (1.12.2001) by S.I. 2001/3649, art. 235(3)

[^c10141971]: Sch. 3 para. 1 wholly in force at 4.11.2003; Sch. 3 para. 1 not in force at Royal Assent see s. 89(2); Sch. 3 para. 1(1)(5) in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 3 para. 1 in force in so far as not already in force at 4.11.2003 by S.S.I. 2003/516, art. 2

[^c10141981]: Sch. 3 para. 2 wholly in force at 4.11.2003; Sch. 3 para. 2 not in force at Royal Assent see s. 89(2); Sch. 3 para. 2(1)(3)(4) in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 3 para. 2 in force in so far as not already in force at 4.11.2003 by S.S.I. 2003/516, art. 2

[^c10141991]: Sch. 3 para. 7 wholly in force at 4.11.2003; Sch. 3 para. 7 not in force at Royal Assent see s. 89(2); Sch. 3 para. 7(1)(2)(a)(3)(a)-(d) in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 3 para. 7 in force in so far as not already in force at 4.11.2003 by S.S.I. 2003/516, art. 2

[^c10141961]: Sch. 3 wholly in force at 4.11.2003; Sch. 3 not in force at Royal Assent see s. 89(2); Sch. 3 in force for specified purposes at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 3 in force in so far as not already in force at. 4.11.2003 by S.S.I. 2003/516, art. 2

[^c10142021]: Sch. 4 para. 7 partly in force; Sch. 4 para. 7 not in force at Royal Assent see s. 89(2); Sch. 4 para. 7(a)-(c) in force at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1

[^c10142061]: Sch. 5 para. 7 wholly in force at 1.4.2002; Sch. 5 para. 7 not in force at Royal Assent see s. 89(2); Sch. 5 para. 7 in force for specified purposes at 2.4.2001 by S.I. 2001/81, art. 2, Sch. 1; Sch. 5 para. 7 wholly in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10142071]: Sch. 5 para. 9 wholly in force at 1.4.2002; Sch. 5 para. 9 not in force at Royal Assent see s. 89(2); Sch. 5 para. 9 in force for specified purposes at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 5 para. 9 wholly in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c18029021]: Sch. 5 para. 10 repealed (1.4.2002) by 2001 asp 8, ss. 80(1), 81(2), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c18029121]: Sch. 5 para. 11 repealed (1.4.2002) by 2001 asp 8, ss. 80(1), 81(2), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13)

[^c10142101]: Sch. 5 para. 17 partly in force; Sch. 5 para. 17 not in force at Royal Assent see s. 89(2); Sch. 5 para. 17(3)-(21)(24)(b) in force for specified purposes at 2.4.2001; Sch. 5 para. 17(1)(2) in force and Sch. 5 para. 17(3)-(21)(24) in force in so far as not already in force at 1.4.2002 by S.S.I. 2001/81, arts. 2, 3, Schs. 1, 2; Sch. 5 para. 17(23) in force at 1.10.2003 by S.S.I. 2003/267, art. 2(2)(d)

[^c10142111]: Sch. 5 para. 22 wholly in force at 1.4.2002; Sch. 5 para. 22 not in force at Royal Assent see s. 89(2); Sch. 5 para. 22 in force for specified purposes at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 5 para. 22 wholly in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10142121]: Sch. 5 para. 23 wholly in force at 1.4.2002; Sch. 5 para. 23 not in force at Royal Assent see s. 89(2); Sch. 5 para. 23 in force for specified purposes at 2.4.2001 by S.S.I. 2001/81, art. 2, Sch. 1; Sch. 5 para. 23 wholly in force at 1.4.2002 by S.S.I. 2001/81, art. 3, Sch. 2

[^c10142131]: Words in Sch. 5 para. 26(3) substituted (1.10.2001) by 2001 asp 8, s. 79, Sch. 3 para. 23(7)(a); S.S.I. 2001/304, art. 2(b)(d)

[^c10142141]: Word in Sch. 5 para. 26(3) substituted (1.10.2001) by 2001 asp 8, s. 79, Sch. 3 para. 23(7)(b); S.S.I. 2001/304, art. 2(b)(d)

[^c10142151]: Words in Sch. 5 para. 26(3) inserted (1.10.2001) by 2001 asp 8, s. 79, Sch. 3 para. 23(7)(c); S.S.I. 2001/304, art. 2(b)(d)

[^c10142161]: Sch. 6 partly in force; Sch. 6 not in force at Royal Assent see s. 89(2); Sch. 6 in force for specified purposes at 2.4.2001 and 1.4.2002 respectively by S.S.I. 2001/81, arts. 2, 3, Schs. 1, 2 (as amended by S.S.I. 2002/172, art. 2); Sch. 6 in force for further specified purposes at 1.10.2003 by S.S.I. 2003/267, art. 2(2)

[^c19656141]: Sch. 5 para. 4 repealed (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 77(2), 79, Sch. 2; S.S.I. 2007/334, art. 2(b), Sch. 2 (with savings in arts. 4-6)