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Laid before the Scottish Parliament by the Scottish Ministers pursuant to section 13(3) of the Adults with Incapacity (Scotland) Act 2000
SE/2002/65 March 2002
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Preface
1. INTRODUCTIONThe ActIncapacityCo-existence of the Act with other legal measuresThe general principles Principle 1 - benefit Principle 2 - minimum intervention Principle 3 - take account of the wishes of the adult Principle 4 - consultation with relevant others Principle 5 - encourage the adult to exercise whatever skills he or she has Provisions relating to nearest relativeTypes of management covered by the Act Powers of attorney Access to funds and joint accounts Management of residents' finances Medical treatment and research Intervention orders and guardianship Limitation of liabilityBodies involved in regulation of interveners or guardians The Public Guardian The courts Local authorities The Mental Welfare Commission for Scotland Legal AidTo whom is this code addressedStatus of the code
2. intervention ordersLegal provisions governing intervention orders Sheriff's power to make intervention order Intervention order in criminal proceedings Possibility of local authority supervision Supervision by Public Guardian Local authority duty to apply for intervention order Reports required to support application General nature of an intervention order Special provisions where an intervention order covers acquisition or disposal of dwelling house Caution Variation or recall of intervention order Effect of intervention order Registration and notification of intervention orders Liability and protection for third parties acting in good faith Reimbursement of outlays Matters which may not be authorised under an intervention order Circumstances in which you might wish to apply for an intervention order Who can be named in an application for an intervention order Advisability of consulting local authority or Mental Welfare Commission about intervention order relating to personal welfare Advisability of consulting the Public Guardian Criteria for seeking an intervention order. Intervention order or guardianship? Nature of the intervention order to be sought Dealing with conflict of interestThe application processApplications for powers relating to medical treatmentApplications seeking the right to deal in heritable property The reports required to support the application Reports of incapacityWhere relevant, reports recommending non-notification to the adultReports on the appropriateness of the order sought and the suitability of the person nominatedApplications relating only to financial or property matters Time limits Access to the report on suitability What happens once the application is lodgedOnce the application is granted Intervention orders relating to heritable property Make a plan to implement the order Where relevant, notify the adult's doctor Records to be kept by a person authorised under an intervention orderRecovery of outlays incurredSupervision by the Public GuardianSupervision by the local authorityNotifying change of addressWhat if there is a complaint against youPossible court proceedings in the event of a complaint
3. obtaining a guardianship orderLegal provisions governing guardianship orders Sheriff's power to make guardianship order Guardianship order in criminal proceedings Supervision by Public Guardian Supervision by the local authority Local authority duty to apply for guardianship order Reports required to support application Powers of guardian Restrictions on the powers that may be conferred on a guardian Effect of guardianship order Liability and protection for third parties acting in good faith Reimbursement and remuneration of guardian Special provisions where guardianship relates to heritable property Caution Who may be appointed as guardian Joint or substitute guardians Registration and notification of guardianship orders Circumstances in which you might wish to become a guardian Who can be named in an application for guardianship Advisability of consulting local authority or Mental Welfare Commission about guardianship order relating to personal welfare Advisability of consulting the Public Guardian about guardianship order relating to property or financial affairs Criteria for seeking guardianship Nature of the guardianship order to be sought Anticipate the powers that your are likely to need Financial guardianship Where the adult's affairs are very simple or the estate modest Direction waiving requirement for management plan Welfare guardianship Dealing with conflict of interestThe application process The application Applications for powers relating to medical treatmentApplications seeking the right to deal in heritable property The reports required to support the application Reports of incapacityWhere relevant, reports recommending non-notification to the adultReports on the appropriateness of the order sought and the suitability of the person nominatedApplications relating only to financial or property matters Time limits Access to the report on suitability What happens once the application is lodgedOnce the application is granted Guardianship orders relating to heritable property
4. exercising financial guardianshipYour duty of care and fiduciary dutyGeneral requirements of financial guardiansBasis of guidanceInitial meetingInventoryManagement plan Review the adult's property and financial affairs Ascertain who else has powers over the adult's financial affairs Note who has welfare powers in relation to the adult Community care services Deciding what to put in the management plan Taking stock of the need and timescale for future changes Obtaining specialist advice Updating your file Proposals in the management plan Check your powers Consultation on your draft management plan Submitting the inventory and management plan Keeping recordsOngoing functions as a financial guardian Make sure you can be contacted Delegation of functions Notification of change of address Hold regular review meetings Monitor the adult's property and financial affairs Determining the need for changes to the management plan Seeking the advice of the Public GuardianConfidentialityWhat to do where there are conflicting views on your proposalsConflict of interest affecting you as guardianWhat to do where your powers are insufficientWhat if there is a complaint against youPossible court proceedings in the event of a complaintAppointment of an additional guardianReimbursement and remuneration of financial guardianSupervision by the Public GuardianGiftsDealing in heritable propertyText of schedule 2 of the Act
5. exercising welfare guardianshipYour duty of care and fiduciary dutyOffence of ill-treatment and wilful neglectBasis of guidanceAction on receiving certificate of appointment from Public Guardian Where relevant, notify the adult's doctor What to do if the adult has communication difficulties Delegating functions to the adult Check your powers Ongoing functions as a welfare guardian Make sure you can be contacted Delegation of functions Notification of change of address Hold regular review meetings Make sure you always know who has powers over the adult's property and financial affairs Community care services Assessing the need for change Looking ahead Obtaining specialist advice Keeping recordsIf you think that intervention needs to be made Apply the general principles Consult anyone with financial powers Consult professional carers involved with the adult Check your powers Encourage adult to exercise residual capacity Recording action takenMonitor the adult's personal welfareSeeking the advice of the local authority and Mental Welfare CommissionConfidentialityWhat to do when there are conflicting views on a proposed interventionDisagreements about medical treatmentMedical researchConflict of interest affecting you as guardianWhat to do where your powers are insufficientPowers to compel co-operation by the adult or othersWhat if there is a complaint against youPossible court proceedings in the event of a complaintCosts of acting as a welfare guardian Forfeiture of remuneration Notification of change of addressSupervision by the local authority Purposes of supervision Directions to a guardian Supervision of local authority guardians Supervision of non-local authority guardians Supervision regulations Visiting Provision of information Consultation
6. renewal, replacement, termination and transfer of guardianshipRenewal of GuardianshipTermination of guardianship Replacement or removal of a guardian by the sheriff Replacement Removal Resignation What if you become unavailable to act? Recall of guardianship What are the grounds for recall?Where an adult with a welfare guardian is detained under the 1984 Act.Who can recall guardianship?Who can apply for recall?Deciding which body to apply toIdentifying the need for recall of guardianshipMaking an application for recallAppeal against recall decisionsTransfer to a different local authority area
7. transitional provisions and international mattersTransitional provisions under the Act for curators bonis, tutors, and Mental Health (Scotland) Act 1984 guardiansForeign appointees and relationships with the law of other countries Position of foreign guardians under the Act Transfers of guardianship within the UK
8. Glossary and useful informationDocuments Statutory authorities under the Act Contacts on specific issues referred to in the codeContacts within the Scottish ExecutiveAppendix - Communicating with the adult
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