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Appeals
8.1 Court proceedings under our legislation will be civil proceedings and the normal rules for appeals will apply. In general, decisions made by statutory bodies such as the Public Guardian and the local authority will be appealable to the sheriff.
Transitional provisions
8.2 We shall clarify the position of existing substitute decision-makers such as Mental Health Act guardians, curators bonis, tutors and attorneys when our legislation comes into effect.
8.3 Existing attorneys with financial powers that continue when the granter loses capacity will be treated as continuing attorneys under the new legislation in many respects. They will not have to register with the Public Guardian, however, or provide information about changes in circumstances. The Public Guardian will supervise these attorneys and investigate any complaints about them if required.
8.4 After commencement of the legislation it will no longer be possible to apply for appointment as a Mental Health Act guardian, curator bonis or tutor since these offices will be abolished. Existing office-holders will be required to act in accordance with the general principles set out in chapter 2 and will be supervised by the Public Guardian, local authority or Mental Welfare Commission if necessary.
8.5 Mental Health Act guardians will convert to the new form of guardianship once their appointment comes up for renewal, that is after 6 months or a year. Curators bonis and tutors will keep their existing powers for a maximum period of 5 years. Within that period an application will have to be made to the court for appointment as financial or welfare guardian as appropriate. During the transitional period, the Public Guardian will have discretion to apply provisions of the new legislation to existing office-holders with financial powers in relation to their management of the adult's estate.
8.6 We shall need to make various changes to other legislation as a consequence of our proposals. In particular, the guardianship provisions in the Mental Health (Scotland) Act 1984 will be repealed. We shall also amend the Criminal Procedure (Scotland) Act 1995, which allows courts to place mentally disordered offenders under the guardianship of the local authority. In future the courts will have the option to appoint a guardian with welfare powers.
Private International Law
8.7 We shall consider legislation on various Private International Law matters. These concern the relationship between the legal systems of different countries in situations involving adults with incapacity who have connections with more than one country. The legislation would provide for rules to determine which country's courts have jurisdiction over the adult with incapacity, which country's law would apply and how decisions made in one country may be enforced in another country. For example, an adult may live in one country, but own property in another.
8.8 An international convention is currently being prepared on these matters by the Hague Conference on Private International Law. The draft convention was the subject of a consultation exercise by the Lord Chancellor's Department and Scottish Courts Administration earlier this year. We shall need to determine in due course how we implement the necessary provisions to implement the convention in Scottish legislation, once the United Kingdom government decides on signature.
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