Appendix 2 Legal provisions governing financial intervention orders and guardianship
The sheriff may require a financial guardian or intervener to find 'caution'. This is an insurance bond to safeguard the adult from any loss that may be caused by the actions of the person authorised under the order. The sheriff can use his/her discretion to dispense with caution in certain circumstances.
- Direction waiving requirement for management plan
The Financial Guardian is required to prepare a financial management plan and to provide accounts as requested by the Office of the Public Guardian. The Public Guardian can decide on the level of reporting required. However, at the hearing, you can ask the sheriff to make a direction waiving the requirement for a management plan to be submitted to the Public Guardian. But you can only do this if you think there are good reasons for claiming that to do so would be burdensome in relation to the size of the estate. But remember, if the estate does not involve property or investments then Access to Funds may be the most appropriate way to manage the adult's funds (see What does incapacity mean?).
- Can the adult enter into transactions without the permission of the financial guardian?
The adult cannot legally enter into any transaction which is within the scope of the guardian's powers, unless the guardian has authorised the person to do so. The fifth principle - that the adult should be encouraged to maintain their skills, encourages this.
For example: the adult could be allowed to withdraw a set amount of money from the bank each week. It might including enabling the adult to pay certain bills. The guardian will need to inform a third party, such as the bank or company, that the adult has been authorised to make the transaction.
Where the guardian does not have powers over particular sorts of transaction (as specified in the guardianship order) the adult's capacity to make transactions is not affected.
- Liability and protection for third parties acting in good faith
Goods and services bought and sold by a third party from a guardian will be regarded as acting in good faith, if it is found that there was some irregularity in the appointment of the guardian. Similar protection is also extended to a third party acquiring in good faith and for value a title to any interest in heritable property.
A guardian is personally liable if he or she acts without disclosing that he or she is acting as guardian or if he or she exceeds the authority conferred by the order. But if the liability arises only from non-disclosure, the guardian can be reimbursed from the adult's estate for any claim against him or her personally in order to safeguard the guardian from personal loss as a result of accidentally forgetting to disclose the capacity in which he or she is acting.
- Special provisions where guardianship relates to heritable property
The Act makes special provision in relation to a guardianship order which gives the guardian any rights the adult had to deal with heritable property, e.g. acquiring or disposing of a house, or renouncing or assigning the tenancy of a shop held by the adult on a long lease. In such a case, the application will have to specify each property affected by the order in such a way that it can be identified on the Register of Sasines or Land Register.
Where you are proposing to apply for a right to deal with, convey or manage any interest in heritable property (including selling a jointly-owned house) which is recorded or is capable of being recorded in the General Register of Sasines or is registered or is capable of being registered in the Land Register of Scotland you may find that legal advice on framing the application would be helpful as property matters can be highly technical. Guidance is available from the Keeper's Customer Services Centres or at www.ros.gov.uk, tel: 0845 607 0161.
Email: Alison Mason