Office of Public Sector Information
References in this Part to “the 2000 Act” are references to the Adults with Incapacity (Scotland) Act 2000 (asp 4).
After section 3(5) of the 2000 Act insert—
“(5A) In determining an application or any other proceedings under this Act, the sheriff shall, without prejudice to the generality of section 1(4)(a), take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services.
(5B) In subsection (5A), “independent advocacy services” has the same meaning as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).”.
(1) Section 4 (orders about functions of nearest relative etc.) of the 2000 Act is amended as follows.
(2) In subsection (1)—
(a) the words “On an application by an adult,” are repealed,
(b) for “the adult”, where first occurring, substitute “an adult with incapacity”,
(c) in paragraph (b), for “application” substitute “order”.
(3) In subsection (3), the words “, on an application by an adult,” are repealed.
(4) After subsection (3) insert—
“(3A) The court may make an order under subsection (1) or (3) only on the application of—
(a) the adult to whom the application relates; or
(b) any person claiming an interest in that adult’s property, financial affairs or personal welfare.
(3B) The court may dispose of an application for an order under subsection (1) or (3) by making—
(a) the order applied for; or
(b) such other order under this section as it thinks fit.”.
(5) Subsection (4) is repealed.
(1) Section 15 (continuing powers of attorney) of the 2000 Act is amended as follows—
(a) after paragraph (b) of subsection (3) insert—
“(ba) where the continuing power of attorney is exercisable only if the granter is determined to be incapable in relation to decisions about the matter to which the power relates, states that the granter has considered how such a determination may be made;”,
(b) in subsection (3)(c)—
(i) leave out “a solicitor” and insert “a practising solicitor”,
(ii) in sub-paragraph (ii), for “other persons” substitute “another person”,
(iii) in sub-paragraph (ii), for “have” substitute “has”,
(c) in subsection (4), for “A solicitor” substitute “A practising solicitor”,
(d) after subsection (4) insert—
“(5) It is declared that the rule of law which provides that an agent’s authority ends in the event of the bankruptcy of the principal or the agent applies, and has applied since subsection (1) came into force, in relation to continuing powers of attorney.”.
(2) Section 16 (welfare powers of attorney) of the 2000 Act is amended as follows—
(a) after paragraph (b) of subsection (3) insert—
“(ba) states that the granter has considered how a determination as to whether he is incapable in relation to decisions about the matter to which the welfare power of attorney relates may be made for the purposes of subsection (5)(b);”,
(b) in subsection (3)(c)—
(i) leave out “a solicitor” and insert “a practising solicitor”,
(ii) in sub-paragraph (ii), for “other persons” substitute “another person”,
(iii) in sub-paragraph (ii), for “have” substitute “has”,
(c) in subsection (4), for “A solicitor” substitute “A practising solicitor”,
(d) in subsection (6)(b), for “mentioned in section 48(1) or (2)” substitute “in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2)”.
(3) After section 16 of the 2000 Act insert—
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.”.
(4) Section 19 (registration of powers of attorney) of the 2000 Act is amended as follows—
(a) in subsection (2)(c), for “send a copy of it to” substitute “give notice of the registration of the document to both the local authority and”,
(b) in subsection (5)—
(i) the word “and” which appears immediately after paragraph (a) is repealed,
(ii) after paragraph (b) insert—
“(c) where the document confers a welfare power of attorney and the local authority requests a copy of it, send such a copy to the local authority; and
(d) where the document confers a welfare power of attorney and the Mental Welfare Commission requests a copy of it, send such a copy to the Mental Welfare Commission.”.
(5) In section 20(3)(b)(iii) (notice of order: supervision etc) of the 2000 Act, the words from “(in” to “disorder)” are repealed.
(6) In section 22 (notice of changes) of the 2000 Act, the words “(in a case where the incapacity of the granter is by reason of, or reasons which include, mental disorder)”, where they occur in subsections (1) and (2), are repealed.
(7) After section 22 of the 2000 Act insert—
(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.”.
(8) In section 23(3) (notice of resignation) of the 2000 Act, the words from “(in” to “disorder)” are repealed.
(9) In section 87(1) (interpretation) of the 2000 Act, after the definition of “power of attorney” insert—
““practising solicitor” means a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c. 46);”.
For Part 3 of the 2000 Act substitute—
(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.
(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.
(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.
(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.
(1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the person to intromit with an adult’s funds.
(2) Those persons are—
(a) an individual (other than an individual acting in his capacity as an officer of a local authority or other body established by or under an enactment);
(b) two or more individuals who wish to act jointly; or
(c) a body (other than a manager of an authorised establishment within the meaning of section 35(2)).
(3) An application under subsection (1) which is accompanied by an application under section 24D may only be granted if—
(a) an account is opened in pursuance of section 24D(5); and
(b) prescribed particulars of that account are notified to the Public Guardian in pursuance of section 24D(7).
(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 applicant.
(5) No application may be made under subsection (1) if a person is already authorised to intromit with the funds of the adult to whom the application relates (unless the application is made by that person).
(6) In this Act, an individual or a body who holds a valid withdrawal certificate issued under this Part is referred to as a “withdrawer”.
(1) An application under section 25(1) must—
(a) state the purposes of the proposed intromission with the adult’s funds, setting out the specific sums relating to each purpose;
(b) specify an account held by a fundholder in the adult’s sole name which the applicant wishes to use for the purpose of intromitting with the adult’s funds (or be accompanied by an application under section 24D to open an account for that purpose);
(c) contain an undertaking that the applicant will open an account (the “designated account”) solely for the purposes of—
(i) receiving funds transferred under the authority of any certificate granted; and
(ii) intromitting with those funds;
(2) The application may also specify another account held by a fundholder in the adult’s sole name which the applicant also wishes to use for the purpose of intromitting with the adult’s funds (or be accompanied by an application under section 24D to open an account for that purpose).
(3) In this Part—
(a) the account specified or, as the case may be, opened for the purposes of subsection (1)(b) is referred to as the adult’s current account.
(b) the account specified or, as the case may be, opened for the purposes of subsection (2) is referred to as the adult’s second account.
(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.
(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”.
(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.
(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).
(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.
(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).
(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).
An application under section 24C, 24D, 25, 26B, 26D, 26F or 26G must—
(a) be signed by the applicant;
(b) contain the name and addresses of the nearest relative, named person and primary carer of the adult, if known;
(c) be submitted to the Public Guardian no later than 14 days after—
(i) where it is required to be countersigned under section 27A, the day the application is so countersigned, or
(ii) in any other case, the day the application is signed by the applicant as mentioned in paragraph (a).
Adult Support and Protection (Scotland) Act 2007