Adults with incapacity: code of practice for local authorities

Chapter 10 Foreign appointees and Relationships with the law of other countries

POSITION OF FOREIGN GUARDIANS UNDER THE 2000 ACT

10.1 Many of the provisions of the 2000 Act apply to guardians or those holding similar offices appointed under the law of another country, including that of England, Wales and Northern Ireland. Such appointees will not, however, be required to have their powers registered by the Public Guardian and their appointments will not therefore be notified to the local authority where the adult lives. The local authority will nevertheless have certain investigative and powers in relation to foreign appointees as they have in relation to guardians appointed under the 2000 Act. Routine supervision of foreign welfare guardians by the local authority is not required by the 2000 Act, but complaints may be investigated and if necessary a local authority could apply to the sheriff to order supervision or to displace the foreign guardian.

10.2 The relationships between the legal systems of the UK, Germany, France, Switzerland and the Netherlands will in future be governed by the Hague Convention on the International Protection of Adults of January 2000, once the Convention comes into force. It was ratified by the UK in November 2003 and in Germany in April 2007 but needs to be ratified by France, Switzerland or the Netherlands before it can come into force. The provisions of the Convention are incorporated at Schedule 3 of the 2000 Act.

10.3 Schedule 3 of the 2000 Act also contains provision for the recognition of equivalent measures taken under the law of a country other than Scotland for the personal welfare or protection of property of an adult with incapacity. This is conditional on the jurisdiction of the authority of the other country being based on the adult's habitual residence there. Similarly in England and Wales the Mental Capacity Act 2005 provides that a protective measure taken in relation to an adult under the law of a country other than England and Wales is recognised there if it was taken on the ground that the adult is habitually resident in the other country. As a matter or practice, Scottish orders are generally recognised in Northern Ireland.

10.4 Where a guardian appointed under the law of another country requires advice on his or her authority in Scotland, or a guardian appointed in Scotland requires advice on his or her authority abroad, this should be sought from the Civil Law Division, St Andrew's House, Regent Road, Edinburgh EH1 3DG.

TRANSFERS OF GUARDIANSHIP WITHIN THE UK

10.5 The 2000 Act removes, through repeals in schedule 6, the provisions at sections 77 and 80 of the 1984 Act for the removal to England and Wales or Northern Ireland of people subject to guardianship in Scotland, and for their guardianship in the new jurisdiction. This is because the powers of guardians in Scotland under the 2000 Act may comprise any of a whole range of financial and welfare powers, and thus would not necessarily match the standard powers conferred on guardians elsewhere in the UK. Guardianship would have to be considered afresh by the courts in the other UK country, where an adult moves from Scotland. However, while the 2000 Act does not provide for transfers of guardianship of adults moving to other UK countries from Scotland, it should be noted that, under section 67(3), 'a guardian having powers relating to the personal welfare of an adult may exercise these powers in relation to the adult whether or not the adult is in Scotland at the time of the exercise of the powers'.

10.6 Where a local authority requires advice on any functions that it may have in relation to attorneys or guardians or similar appointed under the law of any other country, or on the authority in Scotland of such foreign appointees, this should be sought from the Civil Law Division, Tel. 0131 244 4827.