Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (No. 3) (Adults with Incapacity) 2002

Explanatory Note

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 by amending Part XVI (Adults with Incapacity (Scotland) Act 2000). Part 6 of the Adults with Incapacity (Scotland) Act 2000 (“the 2000 Act”) to which the amendments largely relate, comes into force on 1st April 2002.

Paragraph 2(2)(a) inserts a number of definitions into rule 3.16.1 for the purposes of applications under Part 6 of the 2000 Act.

Paragraphs 2(2)(b)(i) and (ii) make provision for the service of an application under rule 3.16.4 to be effected upon the Mental Welfare Commission or the relevant local authority in appropriate cases. Paragraph 2(2)(b)(iii) inserts a new paragraph (6) into rule 3.16.4 requiring the reports that require to be prepared in connection with an application for an intervention order or a guardianship order to be served along with the application.

Paragraph 2(2)(c) amends rule 3.16.6(1) so as to disapply the requirement to hold the hearing within twenty-eight days in cases where one of the persons upon whom the application is to be served is outside Europe.

Paragraph 2(2)(d) amends rule 3.16.8. Paragraph (2)(2)(d)(i)(aa) amends rule 3.16.8(1) in consequence of new rule 3.16.11 and section 70(3) of the 2000 Act (which requires the form of applications under that section to be prescribed in regulations). Paragraphs 2(2)(d)(i)(bb) and (iii) amend rule 3.16.8(1) in connection with applications to renew guardianship orders so that (a) an application for the extension of a guardianship order is treated as an application subsequent to an initial application and thereby required to be made by minute; and (b) the reports that require to be prepared in connection with such an application are served along with the application. Paragraph 2(2)(d)(ii) inserts a new paragraph (1A) to provide that unless the sheriff otherwise directs, any minute in connection with a subsequent application is to be lodged in accordance with and regulated by Chapter 14 of the Ordinary Cause Rules.

Paragraph 2(2)(e) inserts new rules 3.16.10, 11, 12 and 13–

(i) rule 3.16.10 makes provision for the procedure to be followed where a sheriff orders the finding of caution in connection with an intervention order or guardianship order;

(ii) rule 3.16.11 provides that an application for an interim guardian is to be made in the crave of the application for the guardianship order or by motion;

(iii) rule 3.16.12 requires that, where an application for an intervention order or a guardianship order seeks to vest a right to deal with heritable property in the authorised person or the guardian, the application shall contain the necessary details to enable the property to be identified in the Register of Sasines or the Land Register of Scotland; and

(iv) rule 3.16.13 makes provision in connection with the intimation of an application for an order in relation to non-compliance with the decisions of a welfare guardian under section 70 of the 2000 Act.