Terms Used

A

Accounts
documents and supporting information submitted by a guardian to the Public Guardian on an annual basis. An account will also be required if the adult dies or the guardianship order comes to an end for any other reason.
Adult
a person over 16 years.
Adult Support and Protection (Scotland) 2007 Act
legislation implemented to protect adult’s from harm and a requirement to establish Adult Support and Protection Committees for the safeguarding of adults who are at risk of harm.
Adult with incapacity
a term applied to a person over the age of 16 who has been certified by a medical practitioner as being incapable of managing their affairs.
Adults with Incapacity (Scotland) 2000 Act
legislation passed by the Scottish Parliament.
Advocate
a member of the Scottish Bar.
Agent administrator
is the person in a solicitor’s firm who manages EPOAR user accounts.
Applicant
the person with an interest making an application under part 3 or 6 of the Act. Application for variation – is when either an intervention order or guardianship order has been made and the powers need to be changed / varied.
At risk
an adult who is potentially at risk of harm or are unable to safeguard their finances or property.
Attorney
the person who is appointed by the granter to make decisions, if required to do so.

B

Bankruptcy
where a person is unable to pay his or her debts, a creditor may apply to the court for that person’s sequestration, i.e. to have that person declared bankrupt.

C

Care Inspectorate
regulates, inspects and supports the improvement of care, social work and child protection services for the benefit of the people who use them.
Caution
a guardian or an intervener may be required by the Sheriff to find caution, i.e. security, for the protection of the adult’s estate. This is usually done by arranging a bond with an insurance company.
Chief Social Work Officer
this is the person who is appointed under Section 3 of the Social Work (Scotland) Act 1968 to ensure the provision of appropriate professional advice in the discharge of local authorities’ statutory social work duties.
Civil legal aid
is help towards the costs of legal advice and representation, for those who qualify, paid for out of public funds. It is designed to help individuals on low and modest incomes gain access to the legal system.
Code of Practice
highly recommended guidance provided by the Scottish Government to assist those appointed under the Act in carrying out their duties.
COSLA
a representative body for the majority of the local authorities / councils in Scotland.
Countersigning
a person who has known the applicant for more than 1 year, who believes that the information in an access to funds application is true and the applicant is a fit and proper person to access the adult’s funds. There are some restrictions as to who can countersign.
Court order
a decision made at the court.

D

Deprivation of capital
deliberate deprivation occurs when an individual transfers an asset out of his or her possession to put him or herself in a better position regarding the means test for care home accommodation (or to claim social security benefits).
Designated account
this is the account which is set up by the withdrawer to receive funds from the adult’s own account under the authority of the Access to Funds scheme.
Discharge
release from an order or obligation.
Dispensing caution
this is when the Sheriff has decided that there is no requirement for caution.
Dwelling house
this is a property which the adult may still live in or a property that previously was their place of residence. Holiday homes or a second property are not considered as a dwelling house.

E

Embossed certificate
a certificate issued by the Office of the Public Guardian bearing an embossed mark verifying the document has been registered.
Endorsed court order
this is when the Registers of Scotland have recorded the details of the court order in the Land Register or Sasines Register. The court order is stamped and returned to the solicitor acting for the guardian or intervener.
EPOAR
stands for ‘Electronic Power of Attorney Registration’ facility.
European Human Rights Commission
has a statutory remit to promote and monitor human rights; and to protect, enforce and promote equality across the nine “protected” grounds.
Executor dative
a person appointed by the court to gather and distribute the estate or property of a deceased person.
Executor nominate
the person named in the will of the deceased to gather and distribute the estate or property of a deceased person.
Expedited service
a priority service offered to process powers of attorney where a need for urgency can be shown. You must provide a reason as to why the PoA is needed urgently.
Experian check
We reserve the right to carry out an Experian check on guardians/ and or the adult throughout the lifetime of a financial guardianship order, any adverse findings may be reported to the Sheriff. Credit ratings are not affected by this search.

F

Fee exemption
on application the Public Guardian can waive certain fees provided the financial criteria are satisfied.
Financial adviser
A person or regulated company who has permission for the purposes of the Financial Services and Markets Act 2000 to advise on investments. Guardians should ensure they are satisfied that the person/regulated company is independent in that they can give broad general advice and not obligated to recommend certain products.
Financial intervener
person appointed by the court to carry out a specific action(s) on behalf of the adult under Part 6 of the Act.
Financial Ombudsman
set up by Parliament to sort out individual complaints that consumers and financial businesses aren’t able to resolve themselves.
Fundholder
a financial institution such as a bank or building society where the adult’s funds are held.

G

General functions of the Public Guardian
to safeguard and protect the property or finances belonging to adults with incapacity. Section 6 of the Act provides for this.
Graded guardianship
Public Guardian’s paper on graded guardianship highlighting concern about the current system and the need for review and amendment.
Granter
the person wishing to grant powers to another person so that decisions can be made on their behalf.
Guardian
a person appointed by the court to act as guardian in relation to the property, financial affairs or personal welfare of an adult with incapacity.
Guardianship order
an order made by the court appointing one or more persons to act as financial and / or welfare guardian for an adult with incapacity.

H

Heritable estate / property
the term for property in the form of land and houses.

I

Incapacity

for the purposes of this Act, “incapable” means incapable of:

  • acting on decisions; or
  • making decisions; or
  • communicating decisions; or
  • understanding decisions; or
  • retaining the memory of decisions.

in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.

Incapacity statement
A power of attorney (PoA) that is to begin in the event of incapacity must have a statement confirming that the granter ‘has considered how their incapacity is to be determined’.
Interested parties
this can be anyone who is considered to have an interest in an application under parts 3 or 6 of the Act.
Interim guardian
an appointment made by the Sheriff ahead of a final judgement being made, usually to allow an urgent action to take place.
Intervention order
an order made by the court appointing one or more persons to act as financial and / or welfare intervener for an adult with incapacity.
Inventory of estate
document submitted by a guardian to the Public Guardian listing all of the assets in the adult’s estate under their control.

L

Land Register
the register of interests in land under the Land Registration (Scotland) Act 1979 which supersedes the recording of deeds constituting or transferring rights in land under the Register of Sasines.
Local authority
a council constituted under Section 2 of the Local Government etc. (Scotland) Act 1994. When we refer to ‘local authority’ it usually relates to the local authority/council in the area where the adult lives.

M

Management plan
document submitted by a guardian to the Public Guardian stating how they will manage the adult’s financial affairs.
Manual submission
is when you chose to send your documentation to us by post.
Medical practitioner
someone who is registered with the General Medical Council with a license to practice.
Mental Health Officer (MHO)
is a specially trained social worker who has the training, education, experience and skills to work with people with a mental disorder. MHOs work for the local authorities who have legal duties under the Act.
Mental Welfare Commission (Scotland)
an independent organisation set up by the Scottish Parliament with a range of functions under the Act. Section 9 of the Act provides more details.
Moveable estate
the term in the form of bank accounts, stocks and shares, vehicles, jewellery etc.

O

Office of the Public Guardian
established by the Adults with Incapacity (Scotland) Act 2000, based in Falkirk, Scotland.

P

PDF
stands for ‘portable document format’.
Power of attorney
a legally binding written document detailing who you wish to give authority to and the specific powers you wish them to have.
Principles
the Act establishes a set of guiding principles that those appointed and those working with the provisions of the Act must adhere to.
Protected trust deed
A trust deed is a voluntary but formal arrangement that is used by Scottish residents where a debtor (who can be a natural person or partnership) grants a ‘trust deed’ in favour of the trustee which transfers their estate to the trustee for the benefit of creditors.
Public Guardian
the official responsible for supervising powers and orders in relation to adults with incapacity under the Adults with Incapacity (Scotland) Act 2000.
Public register
registers of all those appointed under parts 2, 3, and 6 of the Act that are maintained by the Public Guardian.

R

Register of Sasines
the register of deeds constituting or transferring rights in land and heritable property.
Registers of Scotland
the official land and property register for Scotland.
Relevant others
includes the nearest relative, named person, primary carer and any other person with an interest in the welfare and financial affairs of the adult (this could be a health or social work care manager).
Remuneration
this is the sum of money set by the Public Guardian at the end of an accounting period if satisfied that that the account is a true and fair view of the guardian’s management of the adult’s estate. The guardian can then take the sum due to them from the adult’s estate.
Revoke / revocation
written notification by a granter in a power of attorney to formally change, add or terminate powers or appointments.
Royal Assent
approval given by Her Majesty the Queen.

S

Scottish Courts and Tribunals Service
an independent body corporate established by the Judiciary and Courts Reform (Scotland) Act 2014. Its function is to provide administrative support to Scottish Courts and to the judiciary of those courts, including the High Court of Justiciary, Court of Session, sheriff courts and justice of the peace courts, Tribunals Service and to the Office of the Public Guardian and Accountant of Court.
Scottish Public Services Ombudsman
handles complaints about public services in Scotland.
Scottish statutory instrument (S.S.I.)
the form in which subordinate legislation, that is orders, rules and regulations etc. under an Act of Parliament are made by the Scottish Parliament.
Sender
the person, usually a solicitor, who has taken responsibility to submit the power of attorney (PoA) for registration.
Sequestration
this is another term used in Scotland for bankruptcy.
Sheriff
the judge who presides in the sheriff court.
Simplified account
the account form issued by the Public Guardian when the adult has less that £20,000 in their moveable estate or where special circumstances dictate.
Solicitor
for the purposes of the Act, this is someone who holds a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980.
Specified person
up to two people nominated in the document can be issued with a copy of the registered PoA.
Springing clause
where a power of attorney is not to be registered with the Public Guardian until the occurrence of a specific event, e.g. incapacity.
SSI 56 Schedule 1
a statutory instrument which provides for the form and content of the certificate which must accompany a power of attorney document.
SSI no 79
a statutory instrument which provides for the form and content of the certificate which must accompany an application under part 3 of the Act.
Standard account
the account form issued by the Public Guardian when the adult has more than £16,000 in their moveable estate.
Statute
an Act of Parliament.
Substitute attorney
this is a person who the granter has chosen to take over in the event that the attorney(s) cannot act.

T

Testing clause
this is the section in a power of attorney document where the granter signs.

U

User
person in a solicitors firm who has been set up with an EPOAR account.

W

Withdrawer
this is the name given to the person who the Public Guardian has given authority to access an adult’s funds under part 3 of the Act.