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FAQs

FAQs

FAQs

GENERAL

Q. How do I find out if there is information contained on the public register?

A. You should make your request in writing to this office. You should provide as much personal information as possible about the person who is the subject of the search for example, names, known addresses, date of birth etc. as this will make it easier to search the register. There is no charge for this service.

Q. Why does the OPG no longer offer public register searches routinely to Local Authorities (LA)?

A. The relevant LA is advised on the registration of a welfare PoA or guardianship; for the OPG to then advise a second time, on the request of a member of that LA, is duplication of work for the OPG and an ineffective use of time, which we can ill afford when we are having to ensure we use resources to maximum effect.

Consequently, if someone claims to be the attorney or guardian LA officers can check this with their local authority central office. The attorney or guardian should be able to produce a copy of their certificate which includes the powers they have been granted. If a copy of the document is required this can be obtained from the OPG. The OPG can advise of the presence, or otherwise, of a financial PoA.

Q. What is the difference between an intervention order and a guardianship order?

A. The process for obtaining an intervention order and a guardianship order are basically the same. An intervention order is appropriate to deal with single decisions or actions, or actions requiring a longer time scale provided the benefit is clear and the outcome can be predicted eg a transaction to buy or sell property has a definite beginning and end. On the other hand, a guardianship order is likely to be more suitable where there are several issues to be dealt with and where there is likely to be a need for continuing intervention in the adult’s affairs and flexibility is needed to respond to new situations without having to go back repeatedly to court.

Q. Where can I find codes of practice?

A. There are separate codes of practice for power of attorney, access to funds and intervention and guardianship orders. They are available in the Guidance Forms section of the Scottish Government website and within the Forms and Publications section of this website.

Q. Who should I contact if I'm not satisfied with how my application for appointment is progressing?

A. There are many partners and other professionals involved in working with each procedure of the Act. We understand that occasions may arise where customers are dissatisfied with the level of service provided to them in the lead up to an appointment being granted. We recognise that it may not always be clear to customers who to hold accountable if issues should arise.

The Public Guardian has considered this and suggests that if customers are unclear about who to contact, they may wish to contact this office in the first instance. If we are accountable we will deal with the issue and if we are not we will advise customers of the relevant organisation or person and how to contact them. Click here for more information.




POWERS OF ATTORNEY

Q. Is there a prescribed wording for the new incapacity clause?

A. No - any wording which indicates that the granter has considered how their incapacity shall be determined will be accepted.

A failure to include wording which indicates that the granter has considered how they would wish their incapacity to be determined will result in the document failing against the registration criteria and thus being returned.

The granter is not required to include the outcome of their considerations i.e. they do not need to state how they wish their incapacity to be determined. However, we advocate a reference to this as best practice; but the document will not fail against the registration criteria if reference to 'how' is omitted.

Such wording is required, from 5th October 2007, in all welfare powers of attorney and in continuing powers of attorney that are exercisable only on incapacity.

For ease, the author may wish to include such wording in all continuing powers of attorney; this will be acceptable.

PoAs executed before 5th October 2007, even if submitted after that date, do not require the clause.

Q. Is there a specific format for a power of attorney?

A. There is no single acceptable format for a power of attorney. Solicitors who normally draw up the document make use of their own particular style but there are certain details which must exist in each document. Powers granted by you must be specific in content so they can be strictly interpreted and not be simply implied. The powers granted should be tailor made to your own particular needs.

Examples of powers of attorney, which are purely for illustrative purposes, can be viewed by clicking here.

You are, however, advised to consult a solicitor if you wish to set up a power of attorney.

Q. What is a specified person?

A. Up to two additional copies of the registered power of attorney can be issued free of charge to other parties (known as specified persons). However there must be a clear statement within the power of attorney document that specifies that copies can be issued. Even if section 6 in the registration form is completed, the Public Guardian cannot issue copies to the specified people unless the power of attorney document actually states that a copy should be sent to them.

Please note that the copy sent to specified persons is for information purposes and does not contain an embossed certificate of registration.

Q. When can powers be used?

A. Continuing powers can be used immediately after the power of attorney document has been registered by the Public Guardian unless the granter has incorporated a clause within the document which states that powers cannot be acted upon until a certain event has occurred eg powers may only be acted upon once a registered and licensed medical practitioner has confirmed in writing that the granter no longer has capacity to look after their own financial affairs. Welfare powers may only be acted upon after the power of attorney document has been registered by the Public Guardian and when the granter has lost capacity to make decisions on matters to which the powers apply or the welfare attorney reasonably believes that to be the case.

Q. Is it acceptable for a solicitor/notary public witnessing or signing a power of attorney on behalf of the granter to also complete the prescribed certificate?

A. Yes, this is perfectly acceptable.

Q. I am a solicitor and have to interview a granter and sign a prescribed certificate. If this is not based on my own knowledge of the granter, can I sign this on the basis of having consulted the attorney(s) rather than an individual not involved in the process?

A. Although this would not prevent registration with the Office of the Public Guardian, it is not best practice to sign from such consultation alone as this could be open to challenge in the future as a conflict of interest on behalf of the attorney.† In terms of property matters, we are aware that the Keeper of the Registers of Scotland will exclude his indemnity from a purchaser's title in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 where the seller acts under such a continuing power of attorney.† To avoid an exclusion of indemnity the Keeper will require evidence that the attorney has not acted 'auctor in rem suam' (in his own interests) by acting as consultee at part B of the prescribed certificate to the continuing power of attorney.

Q. I know that a power of attorney form must incorporate a certificate in the prescribed form signed by a practising solicitor, registered and licensed medical practitioner or practising members of the faculty of advocates. What does incorporated mean in terms of the Act?

A. Incorporated can simply mean that the certificate is attached to the power of attorney document. Alternatively if you prefer to add the certificate to the body of the document then you can do so but the wording must follow exactly that on the prescribed certificate (SSI 56 Schedule 1).

Q. I am a trainee solicitor, can I sign the prescribed certificate?

A. Yes , unless your practising certificate includes a specific restriction from signing the prescribed certificates required in Powers of Attorney in terms of section 15, 16 and 16a of the Adults with Incapacity ( Scotland ) Act 2000. The Law Society has issued guidance on this matter for trainee solicitors. For more information on this please click here.

Q. Can a solicitor choose to hold power of attorney documents in his safe and only register them when they require to be used?

A. Yes, however, we would recommend that powers of attorney are registered as promptly as possible. If you choose not to register the document immediately then there is a possibility that between the time of writing and submission for registration, there may be changes to the registration requirements or the document may contain an element that prevents registration. If at this time the granter was incapable and their input was required the power of attorney could not be registered and an alternative but more intrusive and expensive form of intervention may be required to protect the granter’s interests.

Q. I am going on holiday for a period of time and wish to appoint an attorney to look after my affairs in my absence. Do I have to register it with your office?

A. No. If the power is not intended to continue in the event of incapacity then it does not require to be registered with this office.

Q. Do pre Act powers of attorney have to be registered?

A. No. There is no provision under the Act for that to be done.

Q. How many copies of the power of attorney do I receive for the registration fee?

A. The certificate and power of attorney document is issued to the person who sends the application to this office (usually a solicitor). The granter receives a copy of the power of attorney document, and up to two additional copies can be issued to other parties where the power within the document specifically identifies that a copy should be sent to them.  NOTE: Even if section 6 in the registration form is completed, the Public Guardian cannot issue copies to the specified people unless the power of attorney document actually states that a copy should be sent to them.

Q. Can I obtain a duplicate power of attorney certificate?

A. Yes. The granter of the power of attorney, the sender (usually a solicitor) and the attorney may obtain a duplicate certificate. This application must be made in writing and the fee must be enclosed with the letter of request.  The fee for this service is identified in the fee note on the web site but if you are unsure you should contact OPG staff who will assist you. NOTE: A duplicate certificate will not be issued in isolation but will always incorporate the power of attorney document therein. Please note that copies of the OPG documents should not be made.

Q. There is an urgent need for the attorney to act. Can my power of attorney document be registered as a priority?

A. Yes. If there is a genuine urgency, we will expedite the registration of a power of attorney 'on cause shown'. Please contact the office by telephone or e-mail to request this service. We ask that people respect this service and only use it in cases of true urgency to avoid defeating its purpose.

Q. What are the most common reasons for applications for registration of a power of attorney being rejected?

A. The following are the most common reasons for rejection:

Q. Does the Public Guardian charge a fee to amend a Power of Attorney?

A. The Adults with Incapacity (Scotland) Act 2000 is silent on whether it is permissible to amend a power of attorney (PoA) deed once registered. The Public Guardian has taken the view that an amendment sought by a capable granter is permissible.

Subject to the type of amendment a fee may be charged by the Public Guardian. The Powers of Attorney Amendment Policy provides further information.

Q. Can a Scottish Power of Attorney (PoA) be used in England?

A. A Scottish PoA can be used in England if an Organisation (e.g. a bank) accepts its authority but if they do not there are difficulties. What the Organisation may require is an endorsement of the Scottish PoA from the English authorities [Public Guardian or Court of Protection] but the English legislation does not appear to permit these authorities to offer this endorsement. If a Scottish PoA canít be used without an endorsement but one cannot get such an endorsement the Scottish PoA becomes a worthless document. It is recognised that this is an unacceptable position and perhaps not what was intended. The matter rests with England to agree and make any changes that are required.

If you are now based in England and are still capable you may wish to consider doing an English PoA. If capacity has been lost someone will need to apply to the Court of Protection for deputyship (equivalent of Scottish guardianship).

If you need more information about the English system or how best to proceed in England please contact the Office of the Public Guardian for England & Wales, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk

Q.Can a Scottish Power of Attorney (PoA) be used out with the UK?

A. Each country will have its own rules so you will need to check this with a relevant authority in the country in question.

Q. Can a non-Scottish power of attorney be used in Scotland?

A. A non-Scottish PoA can be used in Scotland if an Organisation (e.g. a bank) accepts its authority but if they do not things are more complicated. The Organisation may require some form of Scottish endorsement of the PoA but interpretation of the Scottish legislation suggests a non-Scottish PoA of is automatically valid in Scotland and consequently there is no arrangement under the law for having it formally endorsed. The law in this area lacks certainty; we are seeking to have this clarified.

As an interim measure, we have devised a Certificate which can be printed and presented along with the PoA. This may assist in getting a non-Scottish PoA accepted in Scotland.

If you need more information generally or about how best you might proceed in a given case please contact e-mail the Public Guardian for Scotland:opg@scotcourts.gov.uk




ACCESS TO FUNDS

Q. What is the difference between a current account and a designated account?

A. A current account is the existing account in which the adult’s funds are presently held while the designated account is the one which the withdrawer will open on behalf of the adult and into which the funds agreed will be transferred.

Q. Do I need to open a designated account in the same branch of the bank or building society as the adult’s current account?

A. No. You can basically use any bank or building society. It may be more practical and convenient to use your own bank or building society although you should bear in mind that there may be a delay in setting up the designated account and transferring funds into it if the bank or building society is different. It will be helpful to the staff there if you give them the booklet “A guide for Fundholders” which is sent out with your certificate of authority.

Q. I am a Department of Work & Pensions (DWP) appointee, do I need to apply for Access to Funds?

A. If you are DWP appointee and are already receiving the adultís benefits, it may not be necessary to apply to access the adultís bank account.

However if the adult has savings or income from another source, e.g. an occupational pension, access to funds may be required in addition to DWP appointeeship. Any funds authorised under the access to funds scheme must be paid in to the designated account and kept separate from the appointeeís account where the benefits are paid.

Q. Under the access to funds scheme, can I gain access as a withdrawer to more than one of the adult’s bank accounts?

A. Only one current account may be accessed to provide funds for a designated account, which, for example, pays the adult’s bills. However it is possible to apply to transfer funds between existing accounts in the sole name of the adult and to close such accounts if necessary. This is useful, for example, where old accounts contain some funds but no interest is being paid.

Q. I do not want the adult to know that I am applying for access to their funds, as I know that it would upset them. Is there any way that I can stop the Public Guardian from intimating the application?

A. The only grounds for non intimation to the adult of any application is that intimation or notification would be likely to pose a serious risk to the health of the adult. Medical certificates would have to be provided by two registered and licensed medical practitioners who are independent of each other. Where there is a mental disorder one of the medical practitioners must be approved for the purposes under Section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003. This pertains to special knowledge in diagnosis of mental disorders.

Q. Who is the primary carer?

A. The person or organisation who cares for the adult on a day to day basis. If the adult is permanently resident in hospital the primary carer is the member of staff responsible for providing daily care to the adult, for example the officer in charge of Ward A.

Q. Who is the named person?

A. The Mental Health (Care and Treatment) (Scotland) Act 2003 has created an opportunity for adults to nominate a named person to represent their interests. Where no named person is identified this role will normally fall to the primary carer.

Q. Can a nursing home apply to access the funds of a resident under the Access to Funds Scheme?

A. No. Nursing Homes which are authorised establishments under Part 4 of the Adults With Incapacity (Scotland) Act 2000 (Management of Residents Finances) must operate in terms of Part 4 and cannot operate under the Access to Funds Scheme.

If the Care Home is not registered to use Part 4 of the Act, they cannot apply under the Access to Funds Scheme and another way to manage the adult’s finances will have to be considered, for example, DWP appointee, other individual or organisation making the application.

Q. Can I apply for exemption of the registration fee for making an Access to Funds application?

A. The registration fee for an application to access funds may be the subject of exemption. The applicant will be required to complete the Application for Exemption of Fee and provide supporting documentation to confirm that the necessary criteria identified in the exemption form has been met, i.e. the adult must be either in receipt of income support, income-based jobseeker's allowance, working families' tax credit and/or disabled person's tax credit and/or the estate value is less than £16,000. Click here to view the exemption form.

Q. What are the most common reasons for applications to access to funds being rejected?

A. The following are the most common reasons for rejection:

Q. Can solicitors claim fees in respect of their professional costs for preparing an application to operate under the Access to Funds Scheme?

A. The Access to Funds Scheme is specifically designed as a low cost option to provide assistance to clients without the need for a formal approach to the court. The Public Guardian has a dedicated access to funds team who are specifically trained to provide advice, guidance and assistance throughout the process at no cost to the customer. However, it is recognised that some clients may wish to employ the services of a solicitor. The Public Guardian has agreed that a one off capped fee may be claimed from the adultís funds and any costs over and above that amount should be negotiated between the client and the legal representative. This fee is currently capped at £330 inclusive of VAT but excluding outlays.




GUARDIANSHIP AND INTERVENTION ORDERS

Q. How much does an application for intervention or guardianship order cost?

A. The cost for lodging an application with the court is approximately £87 and the Public Guardian's registration fee is currently £78. However, there are certain circumstances when the Public Guardian will consider waiving the registration fee. You may wish to note that additional fees may be charged by medical practitioners for their reports, legal fees and fees for completion of financial reports (where applicable).

Please click here to view the application form to request that the fee be waived by the Public Guardian.

Q. I am a guardian with financial powers. The adult is now able to manage their own property and financial affairs. Do I need to do anything in addition to completing the Guardianship Recall application form?

A. Yes. You will need medical evidence to support the application. The Public Guardian has prescribed a medical report. This must be completed by a registered and licensed medical practitioner and submitted with the recall application form. Click here to download the medical report form.

Q. I am applying for a guardianship order. Where can I find the relevant forms and what do I do?

A. All relevant reports relative to the application for a guardianship or intervention order application can be downloaded or printed from the Scottish Government web site www.scotland.gov.uk/justice/incapacity An application comprises a summary application accompanied by three separate reports. Two of the reports require to be completed by two registered and licensed doctors independently of each other, one of whom must be approved by the Local Health Board in terms of Section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 where the adult has a mental disorder. Where powers are of a welfare nature the third report is required from a Mental Health Officer where the adult has a mental disorder or where it is inability to communicate from a Chief Social Work Officer. In a case of financial and property guardianship or intervention only, a report is required from a person with sufficient knowledge of the nominated guardian or intervener and the appropriateness of the order sought. An example of a summary application and details of which forms to use can be found on the Scottish Government web site.

Q. How long will the guardianship last?

A. The standard period is 3 years. However the Sheriff has discretion to lengthen or shorten this duration, dependent on the individual's circumstances. If you want the guardianship to be for other than 3 years you should ask as part of your Application for the Sheriff to consider this, explaining why you see an alternative duration as necessary.

Q. What is the time limit for submitting an application in the courts?

A. The application and reports must be lodged with the court not more than 30 days after the interview and assessment of the adult by the authors of the reports.

Q. How long will the process take?

A. Time scales vary depending on the nature and complexity of the case

Q. What is caution?

A. When granting the an intervention or guardianship order, the Sheriff may require a financial intervener or financial guardian to find caution or give some other form of security. Caution is an insurance bond to safeguard the adult's estate from loss caused by negligent actions or omissions by the guardian. For more information on Caution, please click here.

Q. I now have my certificate. What can I do now?

A. In relation to an intervention order you may now act fully in relation to the powers which were conferred on you by the Sheriff. In relation to a guardianship order, unless the Sheriff has directed otherwise, the powers which you have are restricted to (a) ingathering and taking control of the assets of the adult’s estate and (b) making such payments as are necessary to provide for the adult’s day to day needs until a management plan is prepared and approved by the Public Guardian.

Q. Why does my copy of the interlocutor have to be endorsed by the Keeper of the Registers of Scotland?

A. Where the adult owns heritable property details of ownership will be recorded by the Keeper of the Registers of Scotland. Where the Sheriff grants powers for the intervener or guardian to deal with, convey or manage property, registration of the interlocutor ensures that any conveyancing search of the registers reveals the existence of the guardian for the purposes of transactions with the property. Your solicitor will normally do this on your behalf.

Q. What happens if I have been given authority to deal with heritable property which is not in Scotland?

A. If the court order grants you powers to deal with heritable property, belonging to the adult, which is not in Scotland, you will need to inform the appropriate jurisdiction so that the property register can be updated.

Where a property is located in Scotland a guardianship order pertaining to it may be registered with the Keeper of the Registers of Scotland.

Q. When do I as guardian/intervener require to seek the consent of the public guardian in relation to the sale of heritable property?

A. Consent of the Public Guardian is only required when the heritable property is used for the time being as a dwellinghouse by the adult. The existence of the phrase – “used for the time being as a dwellinghouse” – in Section 53(6) and Schedule 2, paragraph 6(1) of the Act has given rise to different interpretations of when the Public Guardian’s consent to sale and price obtained for the sale of heritable property is required.

The Public Guardian has now taken steps to eradicate the possibility of different interpretations by requesting that the Sheriff in his interlocutor gives direction as to what heritable property is identified as – “used for the time being as a dwellinghouse” in this matter. The Public Guardian will thereafter abide by this decision.

Q. My guardianship order is about to expire. What should I do?

A. Depending on circumstances it may be that a lesser form of intervention is now more appropriate and that should be a consideration when looking at the need for renewal.

If the adult is still in need of the protection which is afforded by a guardianship order you can take advantage of the expedited renewal process - section 60(3) of the amended AwI Act. Click here to find out what reports need to be lodged with the application. If you do decide to renew using the expedited process you will need to lodge with your application a report from the Public Guardian commenting on your conduct as guardian and thus your suitability to continue in this role. This report should be dated within 30 days of the application/minute being lodged in court. Please contact us when you are planning your renewal and we will issue this report to you.

If you are unable to continue to act as guardian on behalf of the adult after the date of expiry of the order and no other person is willing to make an application the onus falls to the Local Authority to pursue an application. Where an application to renew a guardianship order is lodged with the court before the expiry date of the original order then the original order will continue to have effect till the new application is determined.

Q. Can my existing bond of caution be used for the renewal application?

A. Yes, in certain circumstances. Please contact this office for advice and guidance.

Q. Will I need to complete a new inventory of estate and management plan?

A. Where a renewal of the guardianship order is granted there will be no need to lodge an inventory of estate. The guardian is required to keep the management plan under constant review and should forward any proposals for variation of the plan whenever it appears to be appropriate. Therefore no management plan would be required unless the guardian proposes to vary the method of dealing with the adult’s estate.




ACCOUNTS

Q. Why is a “statement of review” no longer offered as an alternative to completing a full account?

A. The Public Guardian felt that the review form provided insufficient information to allow us to carry out our supervisory duties.

Q. Is it still relevant to split an Adult’s investment portfolio into Wider and Narrower range?

A. With the introduction of the AWI legislation there is now no longer any requirement for the estate to be split between wider and narrower range.

Q. I have been asked to submit an account, what is needed to satisfy a review by the Public Guardian?

A. You will need to complete and submit the OPG account form along with the relevant account fee. You should also submit vouchers/evidence in support of the account. For example this should include: bank statements, receipts for items over £100 as well as a note of all Income and current Care Costs where applicable. The Account form can be found here and the Guidance Notes can be found here.

Simplified Accounting

In response to customer comments, we have introduced a simplified account form for Guardians managing estates with a total value, including heritable property, of £16,000.00 or less.

The new account form will make accounting to this office easier for Guardians, especially for those with caring responsibilities.

Instead of inserting figures into an account form, the guardian is now required to note brief descriptions of the:-

It is essential that the form is fully completed and that all of the following evidence accompanies the submission of the form:-

A copy of this new form and guidance can be accessed by clicking here.

Q. Is an Account of Charge and Discharge still permissible?

A. This form of accounting is still acceptable to the Public Guardian, however, you should ensure the document is signed by the guardian and also provides details of contact with the adult during the accounting year.

Q. Is it really necessary to keep a record of all receipts for small expenditure, even if it’s for insignificant amounts?

A. Guardian’s should always keep an accurate record of their actings, however, in terms of an account a Guardian need only submit receipts/invoices for any individual expenditure exceeding £100 in value.

Q. How is the fee for lodging an account calculated?

A. The fee for lodging the account is based on the moveable estate at the beginning of the accounting period, this fee is based on the table of fees as noted on our Website which you can view by clicking here.

Q. I am a Curator Bonis. I have always been invoiced after the account has been reviewed, why does the Public Guardian request the account fee upfront?

A. The account fee for the Office of the Public should accompany the accounts. In terms of Section 7(2) of the AWI Act “the Public Guardian may charge the prescribed fee for anything done by him in connection with any of his functions under this Act and he shall not be obliged to act until such fee is paid”.

Q. What is Remuneration?

A. Remuneration is payment to the guardian for properly discharging their duties throughout the year. Once an account has been authorised, remuneration is fixed by the Public Guardian and is calculated as a percentage of the moveable estate at the beginning of the period. The Audit Certificate which is issued by this office will state the amount and these funds can be taken by the guardian from the adult’s estate. The table used for the calculation can be viewed by clicking here.

Q. How much can I claim for mileage incurred as part of my Guardianship duties?

A. The rate payable is 31.4p per mile.

This is the current public transport rate which is the normal rate payable. If, however, you are unable to use public transport or it is unavailable, a higher rate of 47.1p per mile may be considered. Should you consider it necessary to charge the higher rate, please contact the Office of the Public Guardian for their prior approval.

Q. I have a question which isn't covered by any of the above, who should I contact?

A. If you have any questions that you would like to raise about Guardianship Accounts please don’t hesitate to email us at: opgreviewteam@scotcourts.gov.uk




INVESTIGATIONS

Q. Who should I contact if I believe that an adult's property or financial affairs are at risk?

A. The Investigation Team at the Office of the Public Guardian.

opginvestigationteam@scotcourts.gov.uk

Q. What will the Investigation Team do?

A. The team will speak with all the parties involved, ingather evidence and come to a view as to whether the complaint is upheld.

Q. Will an investigation be confidential?

A. Yes. All information received is treated in the utmost confidence, used only by OPG to form a view as to whether or not an adult's property or financial affairs are at risk

Q. What can happen as a result of an investigation?

A. The Public Guardian can take any steps thought necessary to safeguard an adult's property and financial affairs. If necessary an application for any formal order though necessary will be made to the sheriff.

Q. Who should I contact if I think the adult's personal welfare is at risk?

A. In the first instance you should contact the adult’s local authority. You can also contact the Mental Welfare Commission for Scotland. Details of how to contact the Mental Welfare Commission can be found in the Links section of this website.

Q. Will the details be made known to me during the course of the investigation?

A. No. You will be informed of the outcome of the investigation but no details of findings will be made available except in exceptional circumstances. This is because the investigation is dealing with the private affairs of an adult with incapacity.

Q. What happens if the adult dies during the investigation?

A. The Investigation will come to an end. This is because the Public Guardian only has authority to investigate the affairs of living persons. In certain circumstances, information gathered may be made available to the deceased’s executor.

Q. Someone has made a complaint about me. What happens next?

A. An Investigation Officer will contact you to discuss your involvement with the adult’s affairs.




CURATOR GUARDIANS

Q. What is a pre-AWI appointment?

A. This is an appointment which was made before the Adults with Incapacity (Scotland) 2000 Act came into being. Curator bonis, tutor-at-law, tutor dative appointments are all referred to as pre-AwI appointments.

Q. Do pre-AWI appointments need to be renewed?

A. Yes. There was some dubiety within the original Adults with Incapacity (Scotland) Act 2000 (the AwI/Act), as to whether it was necessary for you to renew your order. As a result of a clarification to the AwI Act your former curatory, which transferred to a financial guardianship on the advent of the AwI Act, must be renewed on or before 4 October 2009.

The amended AwI Act now stipulates in Schedule 4 paragraph 6, that former curators shall cease to be authorised to act as the adult's guardian where the person does not apply for renewal within a 2 year period. This particular amendment to the AwI Act commenced on 5 October 2007, consequently the 2 year period within which you must renew completes on 4 October 2009.

Q. How Do I Go About Renewing?

A. You can take advantage of the expedited renewal process - section 60(3) of the amended AwI Act.

Q. Which Court Do I Apply To?

A. Application is to the Sheriff Court in the area which the adult now resides, notwithstanding that the original order may have been made in the Court of Session

Q. How do I make the application to the Sheriff Court?

A. Ordinarily renewal can be via summary application or minute. However, it may be more complicated for former curators appointed by the Court of Session to lodge a minute to renew their appointment in the Sheriff Court, as a process may not exist for the minute to be lodged against.

We are not aware that automatic transmission of the process from the Court of Session to the Sheriff Court is available. Consequently, if you wish to apply by minute you may need to add a crave seeking a warrant from the Sheriff for transmission of the original process from the Court of Session to the Sheriff Clerk and intimation on the Clerk of the Court of Session to do so.

Because of the uncertainties around this application process we have to advise that if you are minded to renew by minute you should seek legal advice, or if legally qualified yourself, give this particular consideration. In conclusion, it may be simpler to apply by a summary process, albeit using the expedited procedure.

The renewal application will need to be lodged with the Sheriff Court on or before 4 October 2009 or your Order will fall. Assuming the papers are lodged prior to that date then your current Order will stand until the application is determined.

Q. Is there an expedited process?

A. Yes. Click here to find out what reports need to be lodged with the application.

If you do decide to renew using the expedited process you will need to lodge with your application a report from the Public Guardian commenting on your conduct as guardian and thus your suitability to continue in this role. This report should be dated within 30 days of the application/minute being lodged in court. Please contact us when you are planning your renewal and we will issue this report to you.

Q. When is the right time to make the renewal?

A. There is debate about the most appropriate timing to make a renewal. On the one hand, as the medical assessment of the adult must be within 30 days of the papers being lodged, if all former curators wait until the deadline the requisite medical experts will be overloaded and some Orders will fall for want of the renewal being lodged before the deadline. Thus appointees would be advised to consider an early renewal application.

However, as there is no obligation to renew until October 2009 much may change for the adult before then in which case you may have submitted the adult to unnecessary medical assessment and their estate to unnecessary expense if you renew much before the deadline.

We would suggest you apply the principles of the Act to determine which is the preferred choice in your individual circumstances.

How long will the renewed order last?

A. The duration of the renewed order should be appropriate to the age, condition and prognosis of the adult. An elderly person with a progressive disease should not be subjected to frequent examinations for reassessment but equally, a young person whose condition may benefit, albeit in the longer term, from advances in medical science should not be placed under an indefinite order.

Although Orders of indefinite duration are permitted under the AwI Act and may be suitable in some cases, generally, and especially for younger people, any Order which offers no opportunity for periodic reassessment of the adult and thus the ongoing suitability of the order and which, therefore, could potentially be limiting unnecessarily the freedoms of the adult, are considered to be inappropriate and may be contrary to the 'least restrictive' principle of the AwI Act, as well as other human rights legislation.

Q. Should I review the powers I have?

A. You are advised to take this opportunity to review and update the powers that you have. The former curatory may simply have offered "the usual powers". Under an AwI guardianship one would normally see a plenary power but also a list of specific, relevant powers.

Q. Should the details of Heritable Property be stated in the application?

A. You are advised to include a conveyancing description of any heritable property within the renewal application. Strictly speaking this requirement only applies on appointment but in transitional cases we are advising it as good practice to include such a description as part of the renewal.

Q. Has there been any changes to Caution?

A. Yes, there are significant changes to the position on caution. Since April 2007 the fixing of caution has become discretionary. Previously caution was essentially mandatory, dispensing of this was only possible in certain limited circumstances. As well as this change, other "securities" are permitted in lieu of caution and a third company has entered the cautionary market, Aviva Insurance UK brokered via Marsh. For further information on the changes to caution click here.

Q. Guardianship is no longer appropriate, is there another AWI alternative?

A. Yes. An estate which has reached a 'steady state' i.e. with regular incomes and expenditures may be suitable for the access to funds scheme which offers an alternative, lesser restrictive, intervention to guardianship. The access to funds scheme has recently been re-engineered, with all of the obstacles which previously limited its use being removed. If you wish more information about this scheme to consider its suitability in your own case please contact the Access to Funds team at the OPG on 01324 678327.

Q. What Happens If I Don't Renew in Time?

A. The renewal application will need to be lodged with the Sheriff Court before 4 October 2009 or your Order will fall. Assuming the papers are lodged prior to that date then your current Order will stand until the application is determined.