Continuing and welfare attorneys: code of practice

Chapter 7 - Pre-act attorneys and attorneys under the law of another country

If you were an attorney before the Act came into force (whether or not you had started to exercise your powers)

7.1 The Act provides that when Part 2 came into force in April 2001, any person holding office as:

• an attorney under a contract of mandate or agency with powers relating solely to the property or financial affairs of an adult became a continuing attorney under the Act;
• an attorney under a contract of mandate or agency with powers relating solely to the personal welfare of an adult became a welfare attorney under this Act;
• an attorney under a contract of mandate or agency with powers relating both to the property and financial affairs and to the personal welfare of an adult became a continuing attorney and a welfare attorney under the Act.

7.2 'Pre-Act' attorneys have to follow the principles in section 1 of the Act, but are not required to have their powers registered by the Public Guardian. It will, however, be possible for the courts to order that a 'pre-Act' financial attorney should be placed under the supervision of the Public Guardian or that a 'pre-Act' welfare attorney should be supervised by the local authority or that the attorney should have to report to the court.

Attorneys appointed under the law of another country

7.3 If you are an attorney appointed under the law of another country, including that of England, Wales and Northern Ireland you will not be required to have your powers registered by the Public Guardian: but you will be subject to many provisions of the Act.

7.4 The sheriff may order for example that a foreign welfare attorney should be supervised by the local authority or that a foreign continuing attorney should be supervised by the Public Guardian.

7.5 The authority of a foreign continuing or welfare attorney comes to an end if a guardian is appointed by a Scottish court with powers relating to the same matter.

Relationships with the law of other countries and jurisdictions

7.6 The relationships between the legal systems of Finland, France, Germany, Scotland and Switzerland are governed by the Hague Convention on the International Protection of Adults of January 2000. The Convention came into force between those jurisdictions in 2009. In the future, it will also apply as regards other countries when they ratify it. (The Convention is not yet in force for England and Wales or Northern Ireland: it was ratified by the UK in 2003 but only in respect of Scotland.) The up-to-date position on ratification can be found on the Hague Conference website at https://www.hcch.net/en/instruments/conventions/status-table/?cid=71. The provisions of the Convention are incorporated into Scots law at Schedule 3 to the Act.

7.7 Schedule 3 to the 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.

7.8 The Act defines when the Scottish courts have jurisdiction, and which sheriff court has jurisdiction. If in doubt, take legal advice.