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Annex C Background to the Regulations
The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008
1. These Regulations prescribe certificates to support registration and revocation of powers of attorney. They also prescribe the classes, in addition to practising solicitors, who can sign the certificates.
2. New section 16A inserted by section 57(3) of the 2007 Act provides that only one certificate is required for registration of a power of attorney containing both welfare and continuing 1 powers. In prescribing this certificate, we have taken the opportunity to review existing forms because we were advised by the Public Guardian that the reason for a significant number of the 25% of powers of attorney being rejected at registration is that the certificate has not been properly completed. We therefore intend to revoke the Regulations containing the current certificates (Regulation 5) and have created a single multi use certificate for use in all three registration situations - a continuing power of attorney only, a welfare power of attorney only or a power of attorney containing both welfare and continuing powers (Regulation 2 and Schedule 1). The information required is the same as that currently requested but it is hoped that the changed layout will make it easier to complete and result in fewer rejections. (The RIA ( Annex E) at paragraphs 15-27 considers the impact of the new certificate for registration of powers of attorney.)
3. Section 57(7) of the 2007 Act inserted new section 22A into the 2000 Act which provides a formal process for revocation of powers of attorney. A revocation notice must be accompanied by a certificate confirming that the revoker understands the effect of what s/he is doing. Regulation 3 and Schedule 2 provide a certificate to accompany a revocation notice. (The RIA ( Annex E) at paragraphs 28-38 considers the impact of the new certificate to accompany a revocation notice.)
4. Regulation 4 prescribes the classes, in addition to practising solicitors, of persons who may sign the certificates under these Regulations. It simply repeats the provision in the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2001 ( http://www.opsi.gov.uk/legislation/scotland/ssi2001/20010080.htm) which are revoked by Regulation 5.
The Adults with Incapacity (Accounts and Funds) (Scotland) Regulations 2008
5. These Regulations relate to new Part 3 of the 2000 Act inserted by section 58 of the 2007 Act and provide for:
- the details of the account which need to be given to the Public Guardian under section 24D(7) (Regulation 2);
- the medical certificate in section 27B to take account of the range of applications available under Part 3 (Regulation 3 and Schedule); and
- a 21 day period for objections under section 27E(2) (Regulation 4). Current guidance on Part 3 applications issued by the Public Guardian allows 21 days for objections to be lodged. This does not appear to cause difficulties and offers a reasonable period for objections to be made. 21 days is the period for objections to applications for recall. 21 days is also the period for notification in The Adults with Incapacity (Non-compliance with Decisions of Welfare Guardians) (Scotland) Regulations 2002.
The Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Amendment Regulations 2008
6. These Regulations amend existing forms in The Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Regulations 2002 ( http://www.opsi.gov.uk/legislation/scotland/ssi2002/20020097.htm) to:
- take account of the restriction on the Mental Welfare Commission for Scotland to recall only welfare guardianships where incapacity is the result of mental disorder;
- take account of the forthcoming removal of the restriction on local authorities which prevents them from recalling welfare guardianships where the Chief Social Work Officer is the guardian; and
- make express provision in the forms to take account of the views of the adult's named person 2, if any.
The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008
7. These Regulations make changes to Regulations 3, 4, 5 and 6 and Schedules 1, 3, 6 and 9 of the Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Regulations 2002 (the 2002 Regulations) ( http://www.opsi.gov.uk/legislation/scotland/ssi2002/20020096.htm) to change existing, and to create new, forms to support the simplified renewal process for guardianships introduced by section 60(3) of the 2007 Act. The single medical report is that currently required for renewal (at Schedule 1 of the 2002 Regulations) with some modifications. The forms completed by a mental health officer, or the Chief Social Work Officer depending on the circumstances, for renewal of a welfare guardianship (Schedules 3 & 4 of the draft Regulations) are significantly shorter than those currently required and address the issues of the general appropriateness of continuing the guardianship and the suitability of the applicant to continue as guardian. For simplified renewal of financial guardianships there is a requirement for a report by the Public Guardian (Schedule 5 of the draft Regulations) which gives an opinion on the applicant's conduct as guardian and his or her suitability to continue as guardian. The requirement at the moment is for a report from someone with sufficient knowledge to comment on the appropriateness of the order sought and the suitability of the person nominated in the application to be appointed. The impact of the new requirement of a report by the Public Guardian for renewal of financial guardianships is discussed at paragraphs 39 - 52 of the RIA ( Annex E).
8. Schedule 1 of the 2002 Regulations is amended by Regulation 2(6)(b) and Schedule 1 to provide for a medical report for examinations of adults who are the subject of an intervention or guardianship order but who live outwith Scotland.
9. Regulation 2(6)(c) and 2(7) make changes to Schedules 1, 2, 4, 5, 7, 8, and 10 of the 2002 Regulations to take account of the views of an adult's named person, if any.
The Adult Support and Protection (Scotland) Act 2007 (Adults with Incapacity) (Consequential and Supplemental Provisions) Order 2008
10. These are consequential modifications relating to the Civil Legal Aid (Scotland) Regulations 2002 which are required as a result of the wider range of applications which will be available under new Part 3. They also revoke the Adults with Incapacity (Countersignatories of Applications for Authority to Intromit) (Scotland) Regulations 2001 (as amended) which will no longer be required as a result of the changes to Part 3.
The Adults with Incapacity (Public Guardian's Fees) (Scotland) Amendment Regulations 2008
11. These are amendments relating to the Adults with Incapacity (Public Guardian's Fees) (Scotland) Regulations 2001 (as amended) which are required as a result of the wider range of applications which will be available under new Part 3.
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