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The Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Regulations 2002

S.S.I. 2002/97 · Made 5 March 2002

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

ADULTS WITH INCAPACITY

Made 5th March 2002

Laid before the Scottish Parliament 7th March 2002

Coming into force 1st April 2002

The Scottish Ministers, in exercise of the powers conferred by sections 73(5), (7) and (10) and 86(2) of the Adults with Incapacity (Scotland) Act 2000f1 and of all other powers enabling them in that behalf, hereby make the following Regulations:

Annotations to the whole text

Footnotes

f1

2000 asp 4; see section 87(1) for the definition of “prescribed” and section 86(1) as to the power to make regulations.

Contents

  1. 1Citation and commencement
  2. 2Interpretation
  3. 3Applications for recall
  4. 4Intimation of application to recall or intention to recall by the Mental Welfare Commission
  5. 5Intimation of application to recall or intention to recall by the local authority
  6. 6Period for objection to recall
  7. 7Intimation of a decision by the Mental Welfare Commission to refuse recall
  8. 8Intimation of a decision by the local authority to refuse recall
  9. 9Period for objection to decision as to recall
  10. 10Form for recording decision by the Mental Welfare Commission
  11. 11Form for recording decision by the local authority
  12. 12Notification of decisions
  13. Signature
  14. Schedule 1Schedule 1
  15. Schedule 2Schedule 2
  16. Schedule 3Schedule 3
  17. Schedule 4Schedule 4
  18. Schedule 5Schedule 5
  19. Schedule 6Schedule 6
  20. Schedule 7Schedule 7
  21. Schedule 8Schedule 8
  22. Schedule 9Schedule 9
  23. Explanatory note

1Citation and commencement

These Regulations may be cited as the Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Regulations 2002 and shall come into force on 1st April 2002.

2Interpretation

Any reference in these Regulations–

(a)

to a numbered section is a reference to the section bearing that number in the Adults with Incapacity (Scotland) Act 2000; and

(b)

to a numbered Schedule is a reference to the Schedule bearing that number in these Regulations.

3Applications for recall

An application under section 73(3) for recall of a guardian’s powers–

(a)

by the Mental Welfare Commission shall be in the form set out in Schedule 1; or

(b)

by the local authority shall be in the form set out in Schedule 2,

and, where the person making the application considers that the adult is no longer incapable, shall be accompanied by a medical report in the form set out in Schedule 3.

4Intimation of application to recall or intention to recall by the Mental Welfare Commission

An intimation by the Mental Welfare Commission under section 73(5) of–

(a)

an application for recall of a guardian’s powers; or

(b)

their intention at their own instance to recall the powers of a guardian,

shall be in the form set out in Schedule 4.

5Intimation of application to recall or intention to recall by the local authority

An intimation by the local authority under section 73(5) of–

(a)

an application for recall of a guardian’s powers; or

(b)

its intention at its own instance to recall the powers of a guardian,

shall be in the form set out in Schedule 5.

6Period for objection to recall

A person may object under section 73(5) to the recall of a guardian’s powers within 21 days of receipt of intimation of the application for recall, or intention to recall, by the Mental Welfare Commission or local authority, as the case may be.

7Intimation of a decision by the Mental Welfare Commission to refuse recall

Where the Mental Welfare Commission proposes to refuse an application for recall under section 73(7), the intimation of that decision shall be in the form set out in Schedule 6.

8Intimation of a decision by the local authority to refuse recall

Where the local authority proposes to refuse an application for recall under section 73(7), the intimation of that decision shall be in the form set out in Schedule 7.

9Period for objection to decision as to recall

A person may object under section 73(7) to the decision by the Mental Welfare Commission or local authority, as the case may be, to refuse an application for recall of a guardian’s powers within 21 days of receipt of intimation of that decision.

10Form for recording decision by the Mental Welfare Commission

A decision by the Mental Welfare Commission to–

(a)

recall the powers of a guardian under section 73(6);

(b)

refuse an application to recall such powers; or

(c)

remit, or not remit, the decision on recall to the sheriff under section 73(8),

shall be in the form set out in Schedule 8.

11Form for recording decision by the local authority

A decision by the local authority to–

(a)

recall the powers of a guardian under section 73(6);

(b)

refuse an application to recall such powers; or

(c)

remit, or not remit, the decision on recall to the sheriff under section 73(8),

shall be in the form set out in Schedule 9.

12Notification of decisions

(1)

Where the Mental Welfare Commission decides to recall the powers of a guardian they shall send a copy of the form provided for at regulation 10 above to the applicant, the local authority and the Public Guardian.

(2)

Where the local authority decides to recall the powers of a guardian it shall send a copy of the form provided for at regulation 11 above to the applicant, the Mental Welfare Commission and the Public Guardian.

Signature

JAMES R WALLACE

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

5th March 2002

Schedule 1

Schedule 2

Schedule 3

Schedule 4

Schedule 5

Schedule 6

Schedule 7

Schedule 8

Schedule 9

Explanatory note

(This note is not part of the Regulations)

These Regulations prescribe the forms to be completed in relation to applications to, and decisions of, the Mental Welfare Commission and local authorities in relation to recall of the powers of guardians under section 73 of the Adults with Incapacity (Scotland) Act 2000 (regulations 3 to 5, 7, 8, 10 and 11 and Schedules 1 to 9).

The regulations provide that the period within which a person may object to the recall of a guardian’s powers, or to the decision of the Mental Welfare Commission or the local authority as to the recall of those powers, shall be 21 days (regulations 6 and 9).

Regulation 12 provides that the Mental Welfare Commission or a local authority shall notify each other, the applicant and the Public Guardian of any decision to recall the powers of a guardian.