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Adults with Incapacity (Scotland) Act 2000

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This is the original version (as it was originally enacted).

57Application for guardianship order

This section has no associated Explanatory Notes

(1)An application may be made under this section by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.

(2)Where it appears to the local authority that—

(a)the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and

(b)no application has been made or is likely to be made for an order under this section; and

(c)a guardianship order is necessary for the protection of the property, financial affairs or personal welfare of the adult,

they shall apply under this section for an order.

(3)There shall be lodged in court along with an application under this section—

(a)reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days before the lodging of the application by at least two medical practitioners one of whom, in a case where the incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder;

(b)where the application relates to the personal welfare of the adult, a report, in prescribed form, from the mental health officer, (but where it is in jeopardy only because of the inability of the adult to communicate, from the chief social work officer), containing his opinion as to—

(i)the general appropriateness of the order sought, based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application; and

(ii)the suitability of the individual nominated in the application to be appointed guardian; and

(c)where the application relates only to the property or financial affairs of the adult, a report, in prescribed form, based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application, by a person who has sufficient knowledge to make such a report as to the matters referred to in paragraph (b)(i) and (ii).

(4)Where an applicant claims an interest in the personal welfare of the adult and is not the local authority, he shall give notice to the chief social work officer of his intention to make an application under this section and the report referred to in subsection (3)(b) shall be prepared by the chief social work officer or, as the case may be, the mental health officer, within 21 days of the date of the notice.

(5)The sheriff may, on an application being made to him, at any time before the disposal of the application made under this section, make an order for the appointment of an interim guardian.

(6)The appointment of an interim guardian in pursuance of this section shall, unless recalled earlier, cease to have effect—

(a)on the appointment of a guardian under section 58; or

(b)at the end of the period of 3 months from the date of appointment,

whichever is the earlier.

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