Decree Appointing Guardian or Authorised Person - Adults with Incapacity - Example Deeds

General

The Adults with Incapacity (Scotland) Act 2000, allows the court to appoint either a guardian (guardianship order) or an authorised person (intervention order).

A decree or order appointing a guardian is registrable in the land register where the adult has heritable property registered there, in terms of section 61 of the 2000 Act. An intervention order is registrable in the land register where the adult has heritable property affected by the order registered there, in terms of section 56 of the 2000 Act.

Typically, where such an order is registered, the order is given effect to in the proprietorship section of a title sheet. For full information on how to examine such applications for registration and the note entries which result, see Legal Capacity. Usually, a certified copy of the order or decree (sometimes called an interlocutor) will be submitted. The examples below are intended to demonstrate what sort of approach such orders often take; they are not statutory styles.

Useful links

Legal Capacity

Court Orders that are Registrable Deeds

Examples

Guardianship Order

AW79/15 Khriti Malhotra - The Adult

INTERLOCUTOR GUARDIANSHIP ORDER FINAL DISPOSAL

FINANCIAL/COMBINED FINANCIAL & WELFARE

Case Reference AW79/15 OPG Reference

Edinburgh 02 September 2015 Sheriff

Act: Macleod for the applicant

Alt:

The sheriff, on the applicant's motion, allows the application to be amended by deleting the words " Pentland Hill Care Home, 23/27 Gylemuir Road, Edinburgh" where they appear in the instance and line four of crave one and substituting therefor " Braid Hills Nursing Home, 77 Liberton Drive, Edinburgh" in respect of the Adult's address; dispenses with reservice of the application as amended; to having considered the amended application and productions, there being no opposition thereto, grants same and in terms thereof Appoints Charles Le Mesurier, Flat 1/2, 68 Queen Street, Edinburgh to be financial and welfare guardian to Khriti Malhotra, born 16 October 1930, formerly residing at , Linlithgow, and now at Braid Hills Nursing Home, 77 Liberton Drive, Edinburgh, on cause shown, for an indefinite period from this date in terms of Part 6 of the Adults with Incapacity (Scotland) Act 2000 with the following functions and duties in relation to the Adult's property, financial affairs and personal welfare and in particular, conferring on him power to:-

Financial Powers:

(a) collect, sue for, receive, discharge and settle all sums, property or rights due or which may become due to the Adult;

(b) draw cheques on and sign forms of withdrawal to uplift money from, or credit money to, or open or close, any account in the Adult's name including accounts held in common with other persons;

(c) authorise expenditure for any service or for the purchase of any item which is required for the Adult's benefit, and pay any accounts incurred by the Adult or for her benefit;

(d) invest any sum or sums which may be available for investment-in such way as the guardian may think best; vary the terms of any investment; and purchase any property, heritable or moveable wherever situated including property held in common with other persons;

(e) vest in the Applicant, whole right and title to deal with, convey and manage the Adult's interest in the heritable property at XXXXXXXX, Linlithgow registered in the Land Register of Scotland under Title No. WLN149765 in terms of Section 61 of the Adults with Incapacity (Scotland) Act 2000;

(f) exchange, in terms of Schedule 2 Section 6(1) of the said Act, with the consent of the public guardian, power to sell at such price or on such other terms as may be approved by the public guardian sell or lease by any method any part of the means and estate, heritable and moveable, wherever situated from time to time belonging to the Adult;

(g) have access to any information regarding the Adult's financial affairs;

(h) give up and sign on behalf of the Adult all returns, claims and forms which may be required in connection, with the Adult's: liability to taxation;

(i ) administer and manage any heritable property wherever situated in which the Adult may be interested; repair, maintain, renew and improve the same and erect additional buildings and structures; grant, accept, vary and terminate leases and rights of tenancy or occupancy; plant, thin and cut down timber; work or let minerals; grant or accept feus; excamb land; all as the Guardian may think proper and as if he was owner of the property;

(j) commence, run, sell or wind up, whether alone or in conjunction with other persons, any business; appoint or employ any person including himself in any capacity in relation to such a business and pay suitable remuneration; and delegate the running of such a business to any extent that he may think proper;

(k) raise or defend or compromise any actions or judicial or .other proceedings in which the Adult is or may be interested so far as she may consider necessary or expedient; refer to arbitration any questions or disputes in which the Adult is or may become involved; appeal against, enforce or implement any judgement, order or award; and appear or instruct appearance on the Adult's behalf before any tribunal, commission or other official inquiry;

(I) attend, act and vote for the Adult, at all meetings of any company or partnership in which the Adult may be interested;

(m) have access to confidential information about the Adult's Will and other testamentary provisions;

(n) employ solicitors, factors, stockbrokers, investment managers, bankers or other agents, and delegate to them such powers as they think fit;

(o) sign any deed or other document necessary to enable the Guardian to implement the powers granted by this deed;

(p) be remunerated out of the Adult's estate in respect of the exercise of his functions as a Guardian relating to the property or financial affairs of the Adult;

(q) be reimbursed for any reasonable outlays or out of pocket expenses incurred which acting on behalf of the Adult as her Guardian;

............

and that upon issue by the public guardian of a certificate of appointment;

and that, on finding caution within a period of 4 weeks from this date to the satisfaction of the Public Guardian in 100% of the estate currently being TWENTY THOUSAND POUNDS (£20,000.00) STERLING and thereafter in 100% of the estate as at the year end review by the public Guardian;

Appoints the said to forthwith apply to the Keeper of the Registers of Scotland for registering of this interlocutor in the Land Register of Scotland);

Authorises the public guardian to issue a certificate of appointment; and Decerns.

Sheriff of Lothian and Borders at Edinburgh

Intervention Order

(Example to follow)