David Cobb
David has practised as an Advocate and Legal Author since 1997, following a lengthy career in Local Government. In the course of developing a mixed Practice, David has established recognition and expertise in the fields of Mental Health, Mental Capacity and Human Rights Law. He has been instructed in cases in the Court of Session, High Court and Sheriff Court, including Judicial Review and Guardianship matters. Recently, he appeared in an Inner House case concerning the capacity of a Patient to instruct a DNACPR Notice. He has also initiated Litigation under the Equality Act 2010 concerning the lengthy mistreatment of a University Student throughout his Studies.
David has had several written works published, including the commentary on the Mental Health (Care and Treatment) (Scotland) Act 2003, the Scottish Human Rights Service, and most recently, “A Practical Guide to the Sheriff Court and Protecting Vulnerable Adults in Scotland.” He has also had several Articles on this field published in the “Scots Law Times”.
David was an Advisor to the Independent Review of Autism in the Mental Health Act (2019) and takes a particular interest in the future implementation of the UN Convention on the Rights of Persons with Disability in Scotland. This will increase in the light of the recent published Review of Mental Health Law in Scotland.
David takes an active interest in the Third Sector and Pro bono work. He is a Trustee of Reeltime Music, a youth Music Charity and Partners in Advocacy, a Mental Health Advocacy service.
Practice Area
Panel
- Scottish Panel
Qualified Year
- 1997
Experience
- Faculty of Advocates (1997 - Present)
- Central Regional Council (1982 - 1996)
- West Lothian District Council (1980 - 1982)
Membership
- Faculty of Advocates
Qualification
- LLB (Hons) Class 2, Division 1 (1980)
Education
- University of Edinburgh (1976 – 1980)
5 Contributions by David Cobb
PRACTICE NOTES
Adults with Incapacity (Scotland) Act 2000: Practice Note on Principles, Powers of Attorney, Guardianship, Intervention Orders, Access to Funds, Residents' Funds, OPG/MWCS Roles, Medical Treatment and Research, and Reforms
Practice Note
On 31 January 2018, the Scottish Government opened a consultation on potential reform of the . This was followed by the Scottish Mental Health Law Review, issued in September 2022. In July 2024, the Scottish Government released proposals for an Adults with Incapacity Amendment Act (see here), which remain out for consultation. It is also consulting on a draft Learning Disabilities, Autism and Neurodivergence Bill (see: here). The Scottish Government has signalled that broader reform of the Adults with Incapacity regime will be explored within a Work Programme running to 2030. No fresh legislation is anticipated before the Scottish Parliament is dissolved in May 2026. This Practice Note considers the (AI(S)A 2000), the statute that sets the framework for safeguarding welfare and managing finances for people in Scotland aged over 16 who lack capacity due to mental illness, learning disability or a related condition, or an inability to communicate. Incapacity means being unable to act, make choices, communicate, or understand such choices. It can also extend to situations where there is difficulty retaining the memory of decisions...
Private Client
PRACTICE NOTES
Scottish guardianship and intervention orders—pre‑application guide under the Adults with Incapacity (Scotland) Act 2000: capacity, suitable appointees, powers/prohibitions, mandatory reports, interim and substitute appointments, and legal aid
This Practice Note sets out the matters to weigh up before seeking the appointment of a welfare and/or financial guardian for anyone aged 16 or over in Scotland, under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000). For guidance on the court route for such applications, see Practice Note: Guardianship applications in Scotland—court process. For the statutory framework relevant to an application, see Practice Note: Adults with Incapacity (Scotland) Act 2000.
When should a guardianship application be considered?
Consider a guardianship application where an adult has lost mental capacity, cannot handle their own welfare and financial matters, and there is no power of attorney in force. An adult is regarded as ‘incapable’ if they are unable to:
acting
making decisions
communicating decisions
understanding the decisions
retaining the memory of decisions
Such incapacity need not arise from a mental disorder (section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003); it may equally stem from an inability to communicate caused by a physical disability that cannot be overcome by human or mechanical means (whether of an interpretative nature or otherwise). This applies even where decision-making support or interpretative aids cannot remedy the communication difficulties identified in such cases...
Private Client
PRACTICE NOTES
Summary applications for guardianship under the Adults with Incapacity (Scotland) Act 2000: drafting, powers, intimation, service, safeguarders, caution, legal aid and Sheriff Court hearings
This Practice Note explains the court procedure for appointing a welfare and/or financial guardian to an adult aged 16 or over in Scotland, covering the process from preparing the application to the making of the order. For guidance on considerations before applying to appoint a welfare guardian or a financial and property guardian, see Practice Notes: Welfare guardianships—Scotland, Financial and property guardianships—Scotland and Adults with Incapacity (Scotland) Act 2000. The Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) provides the statutory framework for safeguarding the interests of adults who lack capacity in Scotland.
Drafting of the application
Initial step
All lay guardians seeking financial powers must complete and lodge a Guardian Declaration form together with the application.
Style
There is no prescribed statutory style for a guardianship order application; commonly it proceeds by summary application for a first order and for any renewal, and by minute to vary an existing order where additional powers/guardians are requested. See Sheriffdom of Lothian and Borders Practice Note No 1 of 2024 and note that, in general, the provisions of this Practice Note also...
Private Client
PRACTICE NOTES
Welfare guardianship in Scotland: principles, applications, powers, supervision and termination under the Adults with Incapacity (Scotland) Act 2000
Within this Practice Note, an incapacitated individual is termed the ‘adult’. For the statutory basis for guardianships, see Practice Note: Adults with Incapacity (Scotland) Act 2000. For details on applying to appoint a guardian, refer to Practice Notes: Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process.
General principles
Anyone appointed under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) must carry out the office in accordance with the s 1 principles, which can be summarised as:
the appointment should confer a benefit on the adult
any intervention should be the least restrictive of the adult’s freedom
the adult’s wishes, past and present, must be considered
so far as reasonable, the views of other relevant parties should be taken into account
the adult should be encouraged to use their abilities wherever possible
These operate as the guiding principles. Guardianships are addressed under Part 5 of AI(S)A 2000 and are most appropriate where long-term or continuing support or management is required. They can be a helpful means of putting informal arrangements...
Private Client
PRECEDENTS
Precedent: Combined Continuing and Welfare Power of Attorney (Scotland) with Detailed Powers, Revocation, Statutory Certificate and Attorney Declaration under the Adults with Incapacity (Scotland) Act 2000
By [name of granter]
In support of [names(s) of Attorney(s)] (Continuing and Welfare Attorney(s)) [ year ] [ Agent details ] Reference: [ ...
Private Client
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