Office of Public Sector Information
PART 2 continued
(1) An application under section 24C, 24D, 25, or 26B must be countersigned by a person who must declare in the application that—
(a) the person knows the applicant and has known the applicant for at least one year prior to the date of the application;
(b) the person is not any of the following—
(i) a relative of or person residing with the applicant or the adult;
(ii) a director or employee of the fundholder;
(iii) a solicitor acting on behalf of the adult or any other person mentioned in this paragraph in relation to any matter under this Act;
(iv) the medical practitioner who has issued the certificate under section 27B in connection with the application;
(v) a guardian of the adult;
(vi) a welfare or continuing attorney of the adult;
(vii) a person who is authorised under an intervention order in relation to the adult;
(c) the person believes the information contained in the application to be true; and
(d) the person believes the applicant to be a fit and proper person to intromit with the adult’s funds.
(2) An application under section 26D (reserve withdrawers) must be countersigned by a person who must declare in the application the matters set out in paragraphs (a) to (d) of subsection (1) but with references in those paragraphs to “applicant” read as references to the proposed reserve withdrawer.
(3) This section does not apply to an application made by a body.
An application under section 24C, 24D, or 25 must be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—
(a) incapable in relation to decisions about; or
(b) incapable of acting to safeguard or promote the adult’s interests in,
the adult’s funds.
(1) On receipt of a competent application under section 24C, 24D, 25, 26B, 26D, 26F or 26G, the Public Guardian must intimate the application to—
(a) the adult;
(b) the adult’s nearest relative;
(c) the adult’s primary carer;
(d) the adult’s named person;
(e) where the applicant is—
(i) the individual mentioned in both paragraph (b) and (c); or
(ii) a body other than a local authority,
the chief social work officer of the local authority; and
(f) any other person who the Public Guardian considers has an interest in the application.
(2) A competent application is an application which complies with section 27 and, where appropriate, sections 27A and 27B.
(1) The Public Guardian may grant an application made under section 24C, 24D, 25, 26B or 26D only if satisfied that—
(a) the applicant in an application under section 24C, 24D, 25 or 26B, or
(b) the proposed reserve withdrawer in an application under section 26D,
is a fit and proper person to intromit with the funds of the adult.
(2) In deciding whether a person is fit and proper, the Public Guardian must have regard to any guidance issued in relation to that matter by the Scottish Ministers.
(1) The Public Guardian must not grant an application under section 24C, 24D, 25, 26B, 26D, 26F or 26G without affording to any person who receives intimation of the application under section 27C or any other person who wishes to object an opportunity to make representations.
(2) Where the Public Guardian proposes to refuse the application the Public Guardian must intimate the proposed decision to the applicant and advise the applicant of the prescribed period within which the applicant may object to the proposed refusal.
(3) The Public Guardian must not refuse an application without affording to the applicant, if the applicant objects, an opportunity to make representations.
(1) The Public Guardian may remit an application under section 24C, 24D, 25, 26B, 26D, 26F or 26G for determination by the sheriff at the instance of—
(a) the Public Guardian;
(b) the applicant; or
(c) any person who objects to the granting of the application.
(2) The sheriff’s decision on an application remitted under subsection (1) is final.
(1) Where a person who has made an application under section 24C, 24D or 25 in respect of an adult makes another application under any of those sections in respect of the same adult, the Public Guardian may disapply any of the provisions in sections 27 to 27B to that application.
(2) Where the Public Guardian is to issue more than one certificate under this Part to the same person, the Public Guardian may instead issue a combined certificate to the person.
(3) References in this Part to a withdrawal certificate or other certificate issued under this Part include references to any combined certificate issued by the Public Guardian instead of the withdrawal or other certificate.
(1) The fundholder of an adult’s current account may act on the instructions of a withdrawer to the extent authorised by the withdrawal certificate issued to the withdrawer.
(2) The fundholder of an adult’s current account presented with a withdrawal certificate must not allow any operations to be carried out on that account other than those carried out in accordance with the certificate by the withdrawer.
(3) The fundholder of an adult’s current account or an adult’s second account presented with a withdrawal certificate may provide the withdrawer with a copy of any statement or other correspondence issued by the fundholder to the adult during the period when the withdrawal certificate is valid.
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).
The fundholder of an account mentioned in section 28 or 28A is liable to the adult for any funds removed from the account under that section at any time when it was aware that the withdrawer’s authority had been terminated or suspended by the Public Guardian under section 31A but, on meeting such liability, the fundholder of the account has a right of relief against the withdrawer.
(1) Any funds used by the withdrawer must be applied only for the benefit of the adult.
(2) Despite subsection (1), where the withdrawer lives with the adult, the withdrawer may, to the extent authorised by the certificate, apply any funds withdrawn towards household expenses.
(1) A withdrawer must notify the Public Guardian—
(a) of any change in the withdrawer’s address; and
(b) of any change in the address of the adult.
(2) A notice under subsection (1) must be given within 7 days of the date of the change to which it relates.
(1) A withdrawer must keep records of the exercise of the withdrawer’s powers.
(2) The Public Guardian may make inquiries from time to time as to the manner in which a withdrawer has exercised the withdrawer’s functions under this Part.
(1) Unless this Part provides otherwise, a withdrawal certificate issued under section 25 is valid for a period of 3 years commencing with the date of issue of the certificate.
(2) The Public Guardian may reduce or extend the period of validity of a withdrawal certificate; and an extension may be without limit of time.
(3) Subsections (1) and (2) are without prejudice to the right of the withdrawer to make subsequent applications under section 25 after the withdrawal certificate ceases to be valid or, as the case may be, a suspension or termination of the withdrawer’s authority.
(4) The validity of a withdrawal certificate ceases—
(a) on the appointment of a guardian with powers relating to the funds or account in question;
(b) on the granting of an intervention order relating to the funds or account in question; or
(c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in question,
but no liability is incurred by any person who acts in good faith under this Part in ignorance of the withdrawal certificate ceasing to be valid under this subsection.
(1) The Public Guardian may suspend or terminate the authority of a withdrawer under a withdrawal certificate.
(2) The Public Guardian must without delay intimate the suspension or termination to—
(a) the withdrawer whose authority is suspended or terminated;
(b) any other joint withdrawer;
(c) any reserve withdrawer; and
(d) the fundholder of the designated account; and
(e) such other persons as the Public Guardian thinks fit.
(3) A suspension or termination under subsection (1) suspends or, as the case may be, terminates all operations on the designated account by the withdrawer whose authority is suspended or terminated.
(4) The Public Guardian must on suspending or terminating the authority of the withdrawer enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii).
(5) The Public Guardian may on terminating the authority of the withdrawer issue to the withdrawer an interim withdrawal certificate to continue to intromit with the adult’s funds for a period not exceeding 4 weeks from the date of the termination.
(1) This section applies to an application under section 25 if condition A or B is satisfied.
(2) Condition A is that the application is made by a person holding an existing withdrawal certificate.
(3) Condition B is that—
(a) the main withdrawer has died or become incapable or the main withdrawer’s authority under this Part has been terminated; and
(b) the application is made, without undue delay, by an individual who was the reserve withdrawer at the time of the death, incapacity, or termination, as the case may be.
(4) Where this section applies, the Public Guardian may disapply any of the provisions in sections 26(1), 27A and 27B to an application to which this section applies (but may require the applicant to provide such other information as the Public Guardian requires to determine the application).
(5) Where condition A is satisfied in relation to an application under section 25, the existing withdrawal certificate will continue to be valid until the application is determined.
(6) Where an application to which this section applies is granted, the existing withdrawal certificate ceases to be valid.
(1) A certificate issued under section 24C, 24D or 26G is valid for such period as it may specify.
(2) But the Public Guardian may cancel the certificate at any time before the end of any period so specified.
(3) The Public Guardian must without delay intimate such a cancellation to—
(a) the person to whom the certificate was issued,
(b) where the certificate was issued under section 26G, the fundholder of the original account, and
(c) such other persons as the Public Guardian thinks fit.
(1) A decision of the Public Guardian—
(a) to grant or refuse an application under section 24C, 24D, 25, 26B, 26D, 26E, 26F or 26G;
(b) to refuse to remit an application to the sheriff under section 27F;
(c) to reduce or extend the period of validity of a withdrawal certificate under section 31(2); or
(d) to suspend or terminate the authority of a withdrawer under section 31A,
may be appealed to the sheriff.
(2) The sheriff’s decision on an appeal under subsection (1) is final.
(1) This section applies where—
(a) there is a guardian with powers relating to the property or financial affairs of an adult; and
(b) an application is made under section 25 in relation to the adult’s funds.
(2) Section 27A does not apply to the application if it is made by the adult’s guardian.
(3) The Public Guardian may disapply section 27B to the application.
(4) Where—
(a) it appears to the Public Guardian that, if the application were granted, the adult’s interests in the adult’s property and affairs can be satisfactorily safeguarded or promoted otherwise than by the existing guardianship; and
(b) the Public Guardian proposes to grant the application,
the Public Guardian must initiate the recall of the guardianship under section 73.
(5) The Public Guardian may not grant the application unless the guardianship is recalled.
(6) Where the Public Guardian grants the application, the withdrawal certificate issued to the withdrawer is valid for such period as the Public Guardian specifies at the time the Public Guardian grants the application.
(7) This section does not apply, and no application under this Part may be made, in the case of an adult if there is a person who is—
(a) appointed or otherwise entitled under the law of any country other than Scotland to act as a guardian (however called) in relation to the adult’s property and financial affairs during the adult’s incapacity; and
(b) recognised by the law of Scotland as the adult’s guardian.
(8) Despite subsection (7), no liability is incurred by any person who acts in good faith under this Part in ignorance of any guardian of the type mentioned in that subsection.
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 the individual’s interests in, the funds in the account, any other joint account holder may continue to operate the account unless—
(a) the terms of the account provide otherwise; or
(b) the joint account holder is barred by an order of any court from so doing.
(1) In section 24B, 27A and 31 any reference to—
(a) a guardian includes 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;
(b) a continuing attorney includes 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 property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.
(c) a welfare attorney includes 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.
(2) In this Part—
“fundholder” means a bank, building society or other similar body which holds funds on behalf of another person;
“withdrawal certificate” means a certificate issued under section 25, 26B, 26E, 26F or 31A.”.
(1) In section 53 (intervention orders) of the 2000 Act—
(a) in subsection (4), for “Section 57(3) and (4)” substitute “Subsections (3), (3A), (3B) and (4) of section 57”,
(b) in subsection (7)—
(i) the word “and” and the words from “shall” to the end of paragraph (b) are repealed, and
(ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,
(c) in subsection (10)—
(i) the word “and” which immediately follows paragraph (a) is repealed,
(ii) after paragraph (a) insert—
“(aa) when satisfied that the person authorised under the order has found caution or given other security if so required, issue a certificate of appointment to the person; and”,
(iii) in paragraph (b), after “Commission” insert “of the terms of the interlocutor”.
(2) In section 55 (notice of change of address), for the words from “notify”, where first occurring, to “Guardian”, where second occurring, substitute “, not later than 7 days after any change of the person’s or the adult’s address, notify the Public Guardian of the change who”.
(3) After section 56 insert—
Where a person authorised under an intervention order dies, the person’s personal representatives shall, if aware of the existence of the authority, notify the Public Guardian who shall—
(a) notify—
(i) the adult;
(ii) the local authority; and
(iii) in a case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors including it, the Mental Welfare Commission; and
(b) enter prescribed particulars in the register maintained under section 6(2)(b)(v).”.
(1) In section 57 (guardianship orders) of the 2000 Act—
(a) in subsection (3)(a), for “an approved” substitute “a relevant”,
(b) after subsection (3), insert—
“(3A) Subsection (3B) applies where a report lodged under subsection (3)(a) relates to an examination and assessment carried out more than 30 days before the lodging of the application.
(3B) Where this subsection applies, the sheriff may, despite subsection (3)(a), continue to consider the application if satisfied that there has been no change in circumstances since the examination and assessment was carried out which may be relevant to matters set out in the report.”,
(c) in subsection (6)(b), for the words from “period” to “appointment” substitute “effective period”,
(d) after subsection (6) insert—
“(6A) The “effective period”, for the purposes of subsection (6), means—
(a) the period of 3 months beginning with the date of appointment; or
(b) such longer period (not exceeding 6 months) beginning with that date as the sheriff may specify in the order.
(6B) In subsection (3)(a), “relevant medical practitioner” means—
(a) an approved medical practitioner;
(b) where the adult concerned is not present in Scotland, a person who—
(i) holds qualifications recognised in the place where the adult is present and has special experience in relation to the diagnosis and treatment of mental disorder which correspond to the qualifications and experience needed to be an approved medical practitioner; and
(ii) has consulted the Mental Welfare Commission for Scotland about the report concerned; or
(c) any other type of individual described (by reference to skills, qualifications, experience or otherwise) by regulations made by the Scottish Ministers.
(6C) The Scottish Ministers shall consult the Mental Welfare Commission before making regulations under subsection (6B)(c).”,
(e) in subsection (7), for “(3)(a)” substitute “(6B)”.
(2) In section 58 (disposal of application for guardianship) of the 2000 Act—
(a) in subsection (6)—
(i) for the words from “shall” to the end of paragraph (b) substitute “may”,
(ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,
(b) in subsection (7)(b), after “caution” insert “or given other security”.
(3) In section 60 (renewal of guardianship)—
(a) for subsection (3) substitute—
“(3) There must be lodged in court along with an application under this section—
(a) at least one report, in the prescribed form, of an examination and assessment of the adult carried out by a medical practitioner not more than 30 days before the lodging of the application;
(b) where the application relates to the adult’s personal welfare, a report, in the prescribed form, from the mental health officer (but where it is in jeopardy only because of the adult’s inability to communicate, from the chief social work officer), containing the officer’s opinion as to—
(i) the general appropriateness of continuing the guardianship, based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application; and
(ii) the suitability of the applicant to continue to be the adult’s guardian; and
(c) where the application relates to the adult’s property or financial affairs, a report from the Public Guardian, in the prescribed form, containing the Public Guardian’s opinion as to—
(i) the applicant’s conduct as the adult’s guardian; and
(ii) the suitability of the applicant to continue to be the adult’s guardian.
(3A) In a case where the incapacity is by reason of mental disorder—
(a) where a single report is lodged under subsection (3)(a), the related examination and assessment must be carried out by a relevant medical practitioner;
(b) where 2 or more reports are so lodged, at least one of the related examinations and assessments must be carried out by a relevant medical practitioner.
“Relevant medical practitioner” has the same meaning in this subsection as it has in section 57(3)(a) (see definition in section 57(6B)).”,
(b) after subsection (4) insert—
“(4A) A sheriff may determine an application made under this section without hearing the parties.”.
(4) In section 61(3) (application for registration of guardianship order) of the 2000 Act, after “caution” insert “or giving other security”.
(5) In section 62(5)(b) (duty to issue certificate of additional guardian’s appointment) of the 2000 Act, after “caution” insert “or given other security”.
(6) In section 63 (substitute guardian) of the 2000 Act—
(a) in subsection (5)—
(i) for the words from “shall” to the end of paragraph (b) substitute “may”,
(ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,
(b) in subsection (9)(b), after “caution” insert “or given other security”.
(7) In section 64(2)(b) (medical treatment to which a guardian cannot consent), 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)”.
(8) In section 70 (non-compliance with guardian’s decisions)—
(a) in subsection (1), the words “or by any other person”, “or other person” and “or any person named in the order” are repealed,
(b) after subsection (4) insert—
“(4A) The sheriff may, on cause shown, disapply or modify the application of—
(a) subsection (3); and
(b) subsection (4) in so far as it requires the sheriff to hear objections.”.
(9) In section 71 (replacement etc. of guardian) of the 2000 Act—
(a) in subsection (2)—
(i) for the words from “shall” to the end of paragraph (b) substitute “may”,
(ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,
(b) in subsection (3)(b)—
(i) in sub-paragraph (i), after “caution” insert “or given other security”,
(ii) in sub-paragraph (ii), after “caution” insert “or given other security”.
(10) In section 72(1) (discharge of guardian with financial powers), after paragraph (a) insert—
“(aa) the expiry of such a guardianship order;”.
(11) In section 73 (recall of guardian’s powers) of the 2000 Act—
(a) in subsection (3), the words from “(other” to “guardian)” are repealed,
(b) after subsection (3) insert—
“(3A) The Mental Welfare Commission may recall the powers of a guardian under subsection (3) only if those powers were granted in a case where the adult’s incapacity is by reason of, or reasons which include, mental disorder.”,
(c) after subsection (10) insert—
“(11) Section 73A modifies the application of this section in relation to the recall by a local authority of guardianship powers held by their chief social work officer.”.
(12) After section 73 of the 2000 Act insert—
Adult Support and Protection (Scotland) Act 2007