Schedule 3 - Children and vulnerable adults Care of adults with incapacity
90.Subparagraph (1) of paragraph 11 of schedule 3 contains modifications of section 13ZA of the Social Work (Scotland) Act 1968 (“the 1968 Act”). These are primarily aimed at permitting local authorities to provide services more swiftly to incapacitated persons.
91.When local authorities are carrying out their functions under section 13ZA they are obliged to follow the principles in section 1 of the Adults with Incapacity (Scotland) Act 2000 (“the 2000 Act “). Subparagraph (1)(a) limits the application of the principles to those set out in subsections (2) and (3) of section 1 of the 2000 Act. It removes the requirement for the local authority to apply the principles in section 1(4) of the 2000 Act, which are to take into account the present and past wishes and feelings of the adult and the views of other interested parties described in the subsection.
92.Subparagraph (1)(b) disapplies section 13ZA(4) of the 1968 Act. This therefore allows local authorities to take steps to provide a community care service to an incapacitated adult despite them having a guardian, welfare attorney or an intervener with powers relating to the proposed steps, or there being an application in process in relation to an intervention order or a guardianship order under the 2000 Act.
93.Subparagraph (2) deals with modifications to section 58A of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). Section 58A pertains to guardianship orders under the 1995 Act. Section 58A(5) provides that such orders are generally to be for a period of 3 years or such other period as the court determines, which may be indefinitely. Subparagraph (2) has the effect of ‘stopping the clock’ on the duration of the orders, which are time limited, whilst this subparagraph is in force. However whilst the ‘clock is stopped’ the guardianship order will continue to have effect. This does not affect any other ground which would cause the guardianship order to cease to have effect.
94.Subparagraph (3)(a) deals with section 47 certificates which authorise treatment for incapacitated adults under the 2000 Act. Section 47 certificates are granted to permit treatment for a limited period of time. The provisions in subparagraph (3)(a) have the effect of ‘stopping the clock running’ on the period of time the authority is granted for in the certificate, whilst the provisions in this subparagraph are in force. However whilst the ‘clock is stopped’ the certificate and the authority therein will continue to have effect. Nothing in this subparagraph shall affect any other ground which would cause the certificate to cease to have effect e.g. revocation.
95.Subparagraph (3)(b) makes modifications to section 58 of the 2000 Act. Section 58 concerns the disposal of an application for guardianship. Section 58(4) provides that guardianship orders will generally be for a period of 3 years or such other period (including an indefinite period) as the court determines. If the guardianship order is for a limited time then subparagraph (3)(b) will have the effect of ‘stopping the clock running’ on the period of time the guardian has been appointed for whilst these provisions are in force. Whilst the ‘clock is stopped’ the guardianship order will continue to have effect. This does not affect any other ground which would cause the guardianship order to cease to have effect.
96.Subparagraph (3)(c) modifies section 60 of the 2000 Act. Section 60 pertains to the renewal of guardianship orders. Section 60(4)(b) permits a sheriff to continue an existing guardianship order for 5 years or such period as the sheriff determines. Subparagraph 3(c) has the effect of ‘stopping the clock running’ on the period of renewal of the guardian’s appointment whilst these provisions are in force. This shall not apply where the order has been continued indefinitely. Whilst the ‘clock is stopped’ the guardianship order will continue to have effect. This does not affect any other ground which would cause the guardianship order to cease to have effect.