PART 6 continued
(1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the scope of the authority conferred on the guardian except in a case where he has been authorised by the guardian under section 64(1)(e); but nothing in this subsection shall be taken to affect the capacity of the adult in relation to any other matter.
(2) Where the guardian has powers relating to the property or financial affairs of the adult, the certificate of appointment issued to him by the Public Guardian shall, subject to the terms of the order appointing him, have the effect of—
(a) authorising the guardian to take possession of, manage and deal with any moveable or immoveable estate (wherever situated) of the adult;
(b) requiring any payment due to the adult to be made to the guardian,
in so far as the estate, payment or matter falls within the scope of the guardian’s authority.
(3) A guardian having powers relating to the personal welfare of an adult may exercise these powers in relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers.
(4) The guardian shall be personally liable under any transaction entered into by him—
(a) without disclosing that he is acting as guardian of the adult; or
(b) which falls outwith the scope of his 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.
(5) Where a third party with whom the adult entered into a transaction was aware at the date of entering into the transaction that authority had been granted by the guardian under section 64(1)(e), the transaction shall not be void only on the ground that the adult lacked capacity.
(6) A transaction for value between the guardian purporting to act as such and a third party acting in good faith shall not be invalid on the ground only that—
(a) the guardian acted outwith the scope of his authority; or
(b) the guardian failed to observe any requirement, whether substantive or procedural, imposed by or under this Act, or by the sheriff or by the Public Guardian; or
(c) there was any irregularity whether substantive or procedural in the appointment of the guardian.
(7) In subsections (3) and (4) 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.
(1) A guardian shall be entitled to be reimbursed out of the estate of the adult for any outlays reasonably incurred by him in the exercise of his functions.
(2) In subsection (1),“outlays”, in relation to a guardian—
(a) who is someone other than the chief social work officer of a local authority, includes payment for items and services other than those items and services which the guardian is expected to provide as part of his functions;
(b) who is the chief social work officer of a local authority, includes payment for items and services only if they would not normally be provided free of charge by the local authority to a person who is in similar circumstances but who does not have a guardian.
(3) The local authority shall, in relation to the cost of any application by them for appointment of their chief social work officer as guardian or of any subsequent application by that officer while acting as guardian—
(a) where the application relates to the personal welfare of the adult, meet such cost;
(b) where the application relates to the property or financial affairs of the adult, be entitled to recover such cost from the estate of the adult,
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.
(4) Remuneration shall be payable out of the adult’s estate—
(a) in respect of the exercise of functions relating to the personal welfare of the adult, only in a case where special cause is shown;
(b) in respect of the exercise of functions relating to the property or financial affairs of the adult, unless the sheriff directs otherwise in the order appointing the guardian,
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.
(5) In determining whether or not to make a direction under subsection (4)(b), the sheriff shall take into account the value of the estate and the likely difficulty of managing it.
(6) Any remuneration payable to the guardian and the amount of outlays to be allowed under subsection (1) shall be fixed by the Public Guardian—
(a) in a case where the guardian is required to submit accounts, when the guardian’s accounts for that period are audited;
(b) in any other case, on an application by the guardian,
and in fixing the remuneration to be paid to the guardian the Public Guardian shall take into account the value of the estate.
(7) The Public Guardian may allow payments to account to be made by way of remuneration during the accounting period if it would be unreasonable to expect the guardian to wait for payment until the end of an accounting period.
(8) A decision by the Public Guardian—
(a) under subsection (6) as to the remuneration payable and the outlays allowable to the guardian;
(b) under subsection (7) as to payments to account to the guardian
may be appealed to the sheriff, whose decision shall be final.
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.
(1) Where any decision of a guardian with powers relating to the personal welfare of the adult is not complied with by the adult or by any other person, and the adult or other person might reasonably be expected to comply with the decision, the sheriff may, on an application by the guardian—
(a) make an order ordaining the adult or any person named in the order to implement the decision of the guardian;
(b) where the non-compliance relates to a decision of the guardian as to the place of residence of the adult, grant a warrant authorising a constable—
(i) to enter any premises where the adult is, or is reasonably supposed to be;
(ii) to apprehend the adult and to remove him to such place as the guardian may direct.
(2) Where any decision of a guardian with powers relating to the personal welfare of the adult is not complied with by any person other than the adult, and that person might reasonably be expected to comply with the decision, the sheriff may, on an application by the guardian make an order ordaining the person named in the order to implement the decision of the guardian.
(3) On receipt of an application in the prescribed form for an order or warrant under subsection (1) or for an order under subsection (2), the court shall intimate the application to the adult or, as the case may be, to the person named in the application as a person against whom the order or warrant is sought and shall advise them of the prescribed period within which they may object to the granting of the application; and the sheriff shall not grant the order or warrant without affording to any objector an opportunity of being heard.
(4) Having heard any objections as mentioned in subsection (3), the sheriff may grant the application.
(5) A constable executing a warrant under subsection (1)(b) may use such force as is reasonable in the circumstances and shall be accompanied by the guardian or such person as the guardian may authorise in writing.
(6) 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.
(1) The sheriff, on an application made to him by an adult subject to guardianship or by any other person claiming an interest in the adult’s property, financial affairs or personal welfare, may—
(a) replace a guardian by an individual or office holder nominated in the application if he is satisfied, in relation to an individual, that he is suitable for appointment having regard to the matters set out in section 59(3) to (5);
(b) remove a guardian from office if he is satisfied—
(i) that there is a substitute guardian who is prepared to act as guardian; or
(ii) in a case where there are joint guardians, that the remaining guardian is or remaining guardians are prepared to continue to act; or
(c) recall a guardianship order or otherwise terminate a guardianship if he is satisfied—
(i) that the grounds for appointment of a guardian are no longer fulfilled; or
(ii) that the interests of the adult in his property, financial affairs or personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship,
and where an application under this subsection is granted, the sheriff clerk shall send a copy of the interlocutor to the Public Guardian.
(2) In making an order replacing a guardian by an individual with powers relating to the property or financial affairs of the adult or removing a guardian from office where there is a substitute guardian with such powers prepared to act as guardian, the sheriff shall, except where—
(a) the individual or substitute guardian is unable to find caution; but
(b) the sheriff is satisfied that nevertheless he is suitable to be appointed guardian or substitute guardian, as the case may be,
require an individual appointed as guardian or the substitute guardian to find caution.
(3) The Public Guardian on receiving a copy of the interlocutor under subsection (1) shall—
(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
(b) where the sheriff—
(i) replaces the guardian by the individual or office holder nominated in the application, when satisfied that, in the case of an individual, the individual has found caution if so required, issue him with a certificate of appointment;
(ii) removes a guardian from office and a substitute guardian is prepared to act, when satisfied that the substitute guardian has found caution if so required, issue the substitute guardian with a certificate of appointment;
(iii) removes a joint guardian from office and there is a joint guardian who is prepared to continue to act, issue a remaining joint guardian with a new certificate of appointment;
(c) 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.
(4) Where the sheriff recalls the guardianship order he may at the same time make an intervention order.
(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; and“guardianship order” shall be construed accordingly.
(1) At any time after—
(a) the recall of a guardianship order appointing a guardian with powers relating to the property or financial affairs of an adult;
(b) the resignation, removal or replacement of such a guardian; or
(c) the death of the adult,
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.
(2) On receipt of an application in the prescribed form, the Public Guardian shall intimate the application to the adult, his nearest relative, his primary carer and any other 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; and he shall not grant the application without affording to any objector an opportunity of being heard.
(3) Having heard any objections as mentioned in subsection (2) the Public Guardian may grant the application.
(4) Where the Public Guardian proposes to refuse the application 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 to the applicant, if he objects, an opportunity of being heard.
(5) The Public Guardian may at his own instance or at the instance of the applicant or of any person who objects to the granting of the application remit the application for determination by the sheriff, whose decision shall be final.
(6) A decision of the Public Guardian—
(a) to grant a discharge under subsection (1) or to refuse a discharge;
(b) to grant an application under subsection (3) or to refuse an application;
(c) to refuse to remit an application to the sheriff under subsection (5)
may be appealed to the sheriff, whose decision shall be final.
(1) The Public Guardian, at his own instance or on an application by any person (including the adult himself) claiming an interest in the property and financial affairs of an adult in respect of whom a guardian has been appointed, may recall the powers of a guardian relating to the property or financial affairs of the adult if it appears to him that—
(a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
(b) the interests of the adult in his property and financial affairs can be satisfactorily safeguarded or promoted otherwise than by guardianship.
(2) Where the Public Guardian recalls the powers of a guardian under subsection (1) he shall—
(a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iv);
(b) notify the adult, the guardian and the local authority.
(3) The Mental Welfare Commission or the local authority in whose area an adult in respect of whom a guardian has been appointed habitually resides (other than a local authority whose chief social work officer has been appointed guardian), at their own instance or on an application by any person (including the adult himself) claiming an interest in the personal welfare of the adult, may recall the powers of a guardian relating to the personal welfare of the adult if it appears to them that—
(a) the grounds for appointment of a guardian with such powers are no longer fulfilled; or
(b) the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.
(4) Where the Mental Welfare Commission or the local authority recall the powers of a guardian under subsection (3) they shall notify the other and 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 guardian.
(5) The Public Guardian, Mental Welfare Commission or local authority, as the case may be, shall—
(a) where acting on an application, on receipt of the application in the prescribed form intimate it;
(b) where acting at his or their own instance, intimate the intention to recall the powers of a guardian,
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.
(6) Having heard any objections as mentioned in subsection (5) the Public Guardian, Mental Welfare Commission or local authority may recall the powers of a guardian.
(7) Where the Public Guardian, Mental Welfare Commission or local authority proposes or propose to refuse the application he or they shall intimate the decision to the applicant and the adult and advise them of the prescribed period within which they may object to the refusal; and he or they shall not refuse the application without affording to the applicant or the adult, if he objects, an opportunity of being heard.
(8) The Public Guardian, Mental Welfare Commission or local authority may at his or their own instance or at the instance of an applicant or of any person who objects to the recall of the powers of the guardian remit the matter for determination by the sheriff whose decision shall be final.
(9) A decision of—
(a) the Public Guardian, Mental Welfare Commission or local authority to recall the powers of a guardian under subsection (6);
(b) the Public Guardian, Mental Welfare Commission or local authority to remit or not to remit the matter to the sheriff under subsection (8),
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.
(10) The Scottish Ministers may prescribe the forms and procedure for the purposes of any recall of guardianship powers by the Mental Welfare Commission or the local authority.
(1) The sheriff, on an application by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of the adult, may vary the powers conferred by the guardianship order and may vary any existing ancillary order.
(2) In varying powers relating to the property or financial affairs of the adult conferred by the guardianship order or in varying any ancillary order in relation to such powers the sheriff shall, except where—
(a) the guardian is unable to find caution; but
(b) the sheriff is satisfied that nevertheless it is appropriate to vary the powers conferred by the guardianship order or to vary the ancillary order,
require the guardian to find caution.
(3) In considering an application under subsection (1), the sheriff shall have regard to any intervention order or guardianship order which may have been previously made in relation to the adult or any other order varying such an order, and to any order ancillary to such an order.
(4) Notwithstanding subsection (1), an application which seeks to vary the powers conferred by a guardianship order or to vary an ancillary order so that—
(a) a guardian, appointed only in relation to the personal welfare of an adult, shall be appointed also or instead in relation to the property or financial affairs of the adult; or
(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, if so required, which covers the varied order, issue a new certificate of appointment where necessary.
(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 if so required, issue him with a new certificate of appointment;
(c) issue a remaining joint guardian 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.
(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.
(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.
(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.
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.