The Civil Legal Aid (Scotland) Regulations 2002

Assessment of resources, etc. of person making application in representative, fiduciary, official or other capacity S

14.—(1) Where the applicant is a person who is concerned in the proceedings only in a representative, fiduciary or official capacity [F1 or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003], then for the purpose of determining that person’s disposable income and disposable capital, and the amount of any contribution required under section 17 of the Act, the personal resources of the applicant shall be disregarded, but regard shall be had to the value of any property or the amount of any fund out of which the applicant is entitled to be indemnified and to the disposable income and disposable capital of any persons (including the applicant if appropriate) who might benefit from the outcome of the proceedings.

(2) Where a person applies for legal aid in connection with any proceedings in which that person is concerned in a representative, fiduciary or official capacity [F2 or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003] and it appears to the Board that the applicant is entitled, whether by an order of the court or otherwise, to be indemnified in respect of his or her expenses in connection with the proceedings out of a fund or by a third party, it shall not grant legal aid unless it is satisfied that the fund cannot reasonably be expected to bear the expense of the proceedings or, as the case may be, that the third party would, if a party to the proceedings, be entitled to legal aid.

(3) Where the applicant is a person concerned in any of the proceedings set out in paragraph (4) below only as claiming or having an interest in the property, financial affairs or personal welfare of an incapable adult under [F3 the 2000 Act] then for the purpose of determining the applicant’s disposable income and disposable capital, and the amount of any contribution required under section 17 of the Act, the personal resources of the applicant shall be disregarded, but regard shall be had to the personal resources of the incapable adult.

(4) The proceedings referred to in paragraph (3) above are proceedings where–

(a) an application is made to the sheriff under section 3(3) of the 2000 Act;

(b) a decision as to the incapacity of an adult is appealed under section 14(b) of the 2000 Act;

(c) an application is made to the sheriff for an order under section 20(2) of the 2000 Act;

(d) an application is made to the sheriff under section 3(6) of the 2000 Act to vary the terms of an order made under section 20(2) of the 2000 Act;

[F4 (e) an application under section 24C, 24D, 25, 26B, 26D, 26F or 26G of the 2000 Act is remitted for determination by the sheriff under section 27F(1) of the 2000 Act;

(f) a decision of the Public Guardian to grant or refuse an application under section 24C, 24D, 25, 26B, 26D, 26E, 26F or 26G of the 2000 Act; to reduce or extend the period of validity of a withdrawal certificate under section 31(2) of the 2000 Act; or to suspend or terminate the authority of a withdrawer under section 31A is appealed under section 31D of the 2000 Act;

(g) a decision of the Public Guardian to refuse to remit an application to the sheriff under section 27F of the 2000 Act is appealed under section 31D of the 2000 Act;]

(h) a decision as to the medical treatment of an adult is appealed under section 50(3) of the 2000 Act;

(i) an application is made to the Court of Session under section 50(6) of the 2000 Act;

(j) a decision as to the medical treatment of the adult is appealed under section 52 of the 2000 Act;

(k) an application [F5 , other than one to which regulation 13A applies,] is made to the sheriff for an intervention order under section 53(1) of the 2000 Act;

(l) an application [F6 , other than one to which regulation 13A applies,] is made for a guardianship order under section 57(1) of the 2000 Act;

[F7 (ll) an application, other than one to which regulation 13A applies, for a renewal of guardianship order under section 60(1) of the 2000 Act, for a joint guardianship order under section 62(1) of the 2000 Act, or for a substitute guardianship order under section 63(1) of the 2000 Act;]

(m) an application is made to the sheriff for the replacement or removal of a guardian, or the recall of a guardianship order, under section 71(1) of the 2000 Act; and

(n) an application is made to the sheriff for variation of a guardianship order under section 74(1) of the 2000 Act.

Textual Amendments

F1 Words in reg. 14(1) inserted (5.10.2005) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2005 (S.S.I. 2005/448), regs. 1, 6

F2 Words in reg. 14(2) inserted (5.10.2005) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2005 (S.S.I. 2005/448), regs. 1, 6

F3 Words in reg. 14(3) substituted (1.8.2006) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/325), regs. 1(1), 7(a) (with reg. 2)

F4 Reg. 14(4)(e)-(g) substituted (1.4.2008) by The Adult Support and Protection (Scotland) Act 2007 (Adults with Incapacity) (Consequential Provisions) Order 2008 (S.S.I. 2008/50), regs. 1, 2

F5 Words in reg. 14(4)(k) inserted (1.8.2006) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/325), regs. 1(1), 7(b) (with reg. 2)

F6 Words in reg. 14(4)(l) inserted (1.8.2006) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/325), regs. 1(1), 7(b) (with reg. 2)

F7 Reg. 14(4)(ll) inserted (5.10.2007) by The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2007 (S.S.I. 2007/425), regs. 1, 5 (with reg. 2)