Publication - Advice and guidance

Code of practice for anyone authorised under an intervention or guardianship order

Published: 24 Jun 2011

Guidance for those authorised to make decisions on behalf of an adult with incapacity.

172 page PDF

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172 page PDF

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Contents
Code of practice for anyone authorised under an intervention or guardianship order
CHAPTER 8 TRANSITIONAL PROVISIONS AND INTERNATIONAL MATTERS

172 page PDF

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CHAPTER 8 TRANSITIONAL PROVISIONS AND INTERNATIONAL MATTERS

TRANSITIONAL PROVISIONS UNDER THE ACT FOR CURATORS BONIS AND TUTORS

8.1 Schedule 4 of the Act describes what happened on the 'relevant date' to people who held the offices of curator bonis, tutor dative, tutor-at-law.

8.2 The 'relevant date' means, for each provision of the Act, the date on which it comes into effect. Part 6, covering guardianship, came into effect on 1 April 2002. The provisions relevant to curators bonis, tutors dative, tutors-at-law, and Mental Health (Scotland) Act 1984 (the 1984 Act) guardians came into effect on 1 April 2002.

8.3 Paragraph 1 of Schedule 4 deals with what happened to curators bonis and tutors to adults on 1 April 2002. Curators bonis became financial guardians with powers over the whole of the adult's property and financial affairs. Tutors-dative became guardians with the powers that they were granted by the court when they were appointed; these are generally welfare powers. Tutors-at-law became guardians with power to manage the property, financial affairs or personal welfare of the adult.

8.4 Anyone appointed as curator bonis to someone under the age of 16, who has been appointed on grounds other than purely the age of the child in question, will become a guardian with powers over property and financial affairs on the child's attaining the age of 16.

8.5 Under paragraph 6(3) of schedule 4, as amended by section 60(17) of the Adult Support and Protection (Scotland) Act 2007, the powers of former curators bonis, tutors-dative and tutors-at-law not renewed by the sheriff within 2 years from 5 October 2007 will have fallen. In the case of those who have become guardians as described in paragraph 8.4, an application for renewal must have been made within 2 years from 5 October 2007 or within 2 years of the child becoming 16, if that is a longer period.

8.6 Those who became guardians under schedule 4 are not required by the Act to have the orders conferring their powers registered by the Public Guardian. The Public Guardian will supervise those who have become guardians with financial powers under the Act. Local authorities will supervise those who have become guardians with welfare powers under the Act.

8.7 All curators bonis, and tutors holding office at 1 April 2002 should have received notification of their position under the 2000 Act, from either the local authority (in the case of tutors dative) or the Public Guardian (in the case of tutors at law and curators bonis).

FOREIGN APPOINTEES AND RELATIONSHIPS WITH THE LAW OF OTHER COUNTRIES

POSITION OF FOREIGN GUARDIANS UNDER THE ACT

8.8 Many of the provisions of the Act apply to guardians or those holding similar offices appointed under the law of another country, including that of England, Wales and Northern Ireland. Such appointees will not, however, be required to have their powers registered by the Public Guardian and their appointments will not therefore be notified to the local authority where the adult lives. The local authority will nevertheless have certain investigative and powers in relation to foreign appointees as they have in relation to guardians appointed under the Act. Routine supervision of foreign welfare guardians by the local authority is not required by the Act, but complaints may be investigated and if necessary a local authority could apply to the sheriff to order supervision or to displace the foreign guardian.

8.9 The relationships between the legal systems of Finland, France, Germany, Scotland, and Switzerland are governed by the Hague Convention on the International Protection of Adults of January 2000. The Convention came into force between those jurisdictions in 2009. In the future, it will also apply as regards other countries when they ratify it. (The Convention is not yet in force for England and Wales or Northern Ireland: it was ratified by the UK in 2003 but only in respect of Scotland.) The up-to-date position on ratification can be found on the Hague Conference website at http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=71. The provisions of the Convention are incorporated into Scots law at Schedule 3 to the Act.

8.10 Schedule 3 to the Act also contains provision for the recognition of equivalent measures taken under the law of a country other than Scotland for the personal welfare or protection of property of an adult with incapacity. This is conditional on the jurisdiction of the authority of the other country being based on the adult's habitual residence there. Similarly in England and Wales the Mental Capacity Act 2005 provides that a protective measure taken in relation to an adult under the law of a country other than England and Wales is recognised there if it was taken on the ground that the adult is habitually resident in the other country. As a matter of practice, Scottish orders are generally recognised in Northern Ireland.

8.11 Where a guardian appointed under the law of another country requires advice on his or her authority in Scotland, or a guardian appointed in Scotland requires advice on his or her authority abroad, this should be sought from the Scottish Government's Justice Directorate, St Andrew's House, Regent Road, Edinburgh EH1 3DG.

TRANSFERS OF GUARDIANSHIP WITHIN THE UK

8.12 The Act removes, through repeals in schedule 6, the provisions at sections 77 and 80 of the 1984 Act for the removal to England and Wales or Northern Ireland of people subject to guardianship in Scotland, and for their guardianship in the new jurisdiction. This is because the powers of guardians in Scotland under the 2000 Act may comprise any of a whole range of financial and welfare powers, and thus would not necessarily match the standard powers conferred on guardians elsewhere in the UK. Guardianship would have to be considered afresh by the courts in the other UK country, where an adult moves from Scotland. However, while the Act does not provide for transfers of guardianship of adults moving to other UK countries from Scotland, it should be noted that, under section 67(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'.