Part 6 – Miscellaneous and general
99.Section 49 abolishes the office of curator bonis. A curator bonis was a person appointed by the court to manage the estate of a child, in the place of the child’s legal guardian or the estate of a person lacking capacity to manage it. The office of curator bonis fell within the definition of a judicial factor in terms of the Judicial Factors Act 1849. The Adults with Incapacity (Scotland) Act 2000 abolished the role with reference to adults with incapacity, and removed reference to curators bonis in relation to judicial factors in the legislation. However, it remained competent for a court to appoint a curator bonis in relation to a young person, and the effect of the changes made by the 2000 Act was that any such curator bonis would not be subject to the supervision of the Accountant. The Act therefore abolishes the office to ensure that no curator bonis can be appointed, and that a court will be required to appoint a judicial factor, who will be subject to the supervision of the Accountant, instead.
100.Section 50 provides for the provisions of the Act to apply in relation to judicial factors appointed other than under the Act, including by virtue of the nobile officium, which is the Court of Session’s common law power to exercise its discretion.
101.Section 51 sets out that the Scottish Ministers may, by regulations, make ancillary provision for the purposes of, or in connection with or for giving full effect to the Act.
102.Section 52(1) introduces schedule 2, which contains modifications to certain enactments. Note in particular the following modifications.
Paragraph 1 modifies the Trusts (Scotland) Act 1921 to remove judicial factors from the ambit of that Act.
Paragraphs 2 to 8 make consequential modifications to various Acts to reflect the replacement of historic legislation in relation to judicial factors by the Act.
Paragraph 9 modifies the Bankruptcy (Scotland) Act 2016 to prevent property held by a debtor in the capacity of judicial factor from vesting in a trustee in sequestration, and to make provision for cases where a judicial factor is appointed to an insolvent estate. It also makes a number of consequential amendments.
103.Section 52(2) introduces schedule 3, which repeals certain enactments to the extent mentioned in the second column of that schedule. The Judicial Factors Act 1849 and the Judicial Factors (Scotland) Acts 1880 and 1889 are repealed in their entirety and will be replaced by the Act. The other repeals are consequential on these repeals.
104.Section 53 is the interpretation section. It contains definitions of certain terms used in the Act.
105.Section 54 sets out when the provisions of the Act will come into force (i.e. have legal effect). Most provisions will be brought into force by regulations as determined by the Scottish Ministers. These regulations will be laid before the Scottish Parliament but will not otherwise be subject to any parliamentary procedure. However, this section, section 51 (ancillary provision) and section 55 (the short title) come into force on the day after Royal Assent.
106.Section 55 provides for the short title (i.e. the Judicial Factors (Scotland) Act 2025), which is the name by which the Act may be cited in formal proceedings.
