A consultation has been launched on modernising the law around judicial factors to bring clarity, accessibility and efficiency to an important but outmoded area of the law.
A judicial factor is a person appointed by the court to hold, manage, administer and protect property in circumstances where it is not possible, practicable or sensible for those responsible for the property to do so.
Examples of appointments are where there has been a breach of professional practice in a solicitors’ firm and the firm liabilities exceed, or appear likely to exceed, its assets; where a partnership is in dispute or where those running a charity appear to have been running it inappropriately.
In August 2013 the Scottish Law Commission published their report on judicial factors and the consultation is seeking views on the Commission’s draft bill and some of the recommendations. It also asks about the approach to be taken on the estates of missing people and specific points to improve the safeguarding of children’s property under the Children (Scotland) Act 1995.
The appointment of a judicial factor over a missing person’s estate would help conserve and protect the estate until their return or until they are declared dead. The Scottish Government wants to make the appointment process as accessible as possible for family members.
Community Safety Minister Ash Denham said:
“The office of judicial factor has a long history in Scots law and there is a continuing need for capable administrators to be appointed to manage the property of those who cannot, should not or will not manage it properly themselves. There has been no new primary legislation since the nineteenth century and it is recognised that the law needs to be updated.
“Although the volume of appointments of judicial factors is relatively small, they have an important role to play so we must ensure the legislation is fit for modern Scotland.”
The Judicial Factors consultation is open for responses until 20 November 2019.
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