The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008

Made: 20th February 2008

Laid before the Scottish Parliament: 21st February 2008

Coming into force: 1st April 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 7(1)(c), 15(3)(c), 16(3)(c) and 22A(2)(b) of the Adults with Incapacity (Scotland) Act 2000[^f00001] and all other powers enabling them to do so.

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008 and come into force on 1st April 2008.

• (2) In these Regulations–

• “the Act” means the Adults with Incapacity (Scotland) Act 2000;

• “the 2001 Regulations” means the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2001[^f00002].

Certificates for use in connection with continuing and welfare powers of attorney and revocation notices

2

For the purposes of sections 15(3)(c) and 16(3)(c) of the Act, the certificate to be incorporated in a written document granting a continuing power of attorney, or a welfare power of attorney, or both, shall be in the form set out in Schedule 1.

3

For the purposes of section 22A(2)(b) of the Act, the certificate to be incorporated in a notice revoking part or all of a continuing power of attorney, or a welfare power of attorney, or both, shall be in the form set out in Schedule 2.

Classes of persons for the purposes of sections 15(3)(c), 16(3)(c) or 22A(2)(b) of the Act

4

For the purposes of sections 15(3)(c), 16(3)(c) and 22A(2)(b) of the Act, the following classes are prescribed:–

• (a) practising members of the Faculty of Advocates; and

• (b) registered medical practitioners.

Revocation and savings

5

• (1) Subject to paragraph (2) the 2001 Regulations are revoked.

• (2) The 2001 Regulations continue to have effect on or after 1st April 2008 in relation to certificates signed before that date.

SCHEDULE 1 — CERTIFICATE UNDER SECTIONS 15(3)(c) AND/OR 16(3)(c) OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 TO BE INCORPORATED IN A DOCUMENT GRANTING A POWER OF ATTORNEY

SCHEDULE 2 — CERTIFICATE UNDER SECTION 22A(2)(b) OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 TO BE INCORPORATED IN NOTICE REVOKING A POWER OF ATTORNEY

Signed

FERGUS EWING — Authorised to sign by the Scottish Ministers — 20th February 2008

Explanatory note

(This note is not part of the Regulations)

These Regulations prescribe certificates for use in connection with the grant of continuing and welfare powers of attorney and the revocation thereof under sections 15, 16 and 22A of the Adults with Incapacity (Scotland) Act 2000 (“the Act”). The certificates are set out as Schedules to these Regulations. The changes are in consequence of the coming into force of amendments to sections 15(3) and 16(3) and the insertion of new sections 16A and 22A in the Act by section 57 of the Adult Support and Protection (Scotland) Act 2007 (asp 10).

Regulation 2 and Schedule 1 prescribe the certificate for granting a continuing or welfare power of attorney or both (new section 16A of the Act provides for a single certificate where a document confers both a continuing and welfare power of attorney).

Regulation 3 and Schedule 2 prescribe the certificate for revoking a power of attorney (new section 22A of the Act provides for the revocation of a power of attorney to incorporate a certificate in the prescribed form).

Regulation 4 prescribes the classes of persons, in addition to practising solicitors, who may issue a certificate under sections 15, 16 or 22A.

Regulation 5 revokes the Adults with Incapacity (Certificate in Relation to Powers of Attorney) (Scotland) Regulations 2001 and saves the effect of those Regulations with regard to certificates signed before 1st April 2008.

Footnotes

[^f00001]: 2000 asp 4, as amended by the Adult Support and Protection (Scotland) Act 2007 (asp 10). See section 87(1) and (1A) for the definition of “prescribe” and section 86(1) as to power to make regulations.

[^f00002]: S.S.I. 2001/80.