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The operation of paragraph 6 (1) of Schedule 2 of the Adults with Incapacity (Scotland) Act 2000

A Guardian is an individual appointed by the Court to look after the affairs of another individual (referred to as the “Adult”) who lacks the capacity to deal with their affairs themselves. Once appointed, the Guardian is subject to stringent regulation by the Office of the Public Guardian (OPG).

Often, the Guardian will require to sell the former home of the Adult who is now resident in a nursing home. Paragraph 6 (1) of Schedule 2 of the Adults with Incapacity (Scotland) Act 2000 provides that “the Guardian shall not, without the consent of the Public Guardian (a) in principle; and (b) to the purchase or selling price, purchase accommodation for, or dispose of any accommodation used for the time being as a dwelling house by, the Adult”.

There is a very common misconception that the consent of the OPG is required to the sale of any property under the control of a Guardian.  This is, however, simply not the case as such consent is only required in cases where the property in question comprises accommodation used for the time being as a dwelling house by the Adult. Therefore in many cases (as the Adult will have moved out of the property and will likely be resident in a nursing home) there will be no requirement to apply for OPG consent. Applying for such consent can often be a time consuming exercise and time is regularly of the essence when dealing with property sales. It is therefore welcoming to know that consent is not always required, although of course all Guardians are still subject to other regulations in terms of the legislation.

For further information, please contact Alan Thomson

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