Notes for Guidance - Protected Trust Deeds - Bankruptcy (Scotland) Act 2016

Section 167(5) of the Bankruptcy (Scotland) Act 2016 Act requires the trustee to have regard to any guidance issued by the Scottish Ministers about giving debtors adequate time to consider the advice and material. This section provides that guidance.

After the debtor has been given the advice described in section 2.4, the information document described in section 2.5 and the debt advice information package described in section 2.6, the debtor must then be given adequate time to consider the advice and materials provided. 

Scottish Ministers consider the appropriate adequate time period to be a minimum of 3 calendar days, after the insolvency practitioner has provided the advice and material described in section 2.4, 2.5 and 2.6 of this guidance. 

Depending on the debtor’s individual circumstances, for example where there are more complex vulnerabilities, it may be appropriate for debtor to have a period longer than 3 calendar days to consider the advice and materials provided. The insolvency practitioner may decide to provide the debtor with additional time should they consider it appropriate, however as long as a minimum of 3 calendar days’ time has been provided, the requirements of Section 167(3) will have been met.

The insolvency practitioner should be confident that the debtor has understood the advice they have provided.  Insolvency practitioners should bear in mind that the debtor’s anxiety about their immediate financial circumstances may affect their ability to think through the longer term consequences of a trust deed.

For the avoidance of doubt, follow up discussions, clarification or questions raised by the debtor after the provision of the advice and materials required does not have an impact on the starting point or duration of the adequate time period.

In calculating the calendar day period, this shall exclude the day where the last of the requirements described in sections 2.4 – 2.6 is fulfilled and the day of signing the trust deed.

In some circumstances the trustee may provide the debtor with the trust deed document prior to the end of the adequate time period. However, the debtor must not sign the trust deed document before the adequate time period has expired, in order to avoid granting a trust deed that will not meet the protection requirements.

Example – The advice and materials required are sent by the insolvency practitioner on 20 January 2025. The 3 calendar day period would then be 21 – 23 January. The earliest that the debtor could sign the trust deed to fulfil the protection requirements would be 24 January 2025.