A time for support

Scotland has an ageing population, as improvements in lifestyle and health care now offer a much higher life expectancy than was the case for previous generations. Along with this increase, however, is a rise in age-related illnesses.

A recent report by the Alzheimer’s Society estimates that the number of Scots with dementia will rise from 58,000 in 2008 to 102,000 by 2031. Many reading this article will know all too well the distress which a mental illness such as dementia can cause to family, friends and the person with the illness.

In Scotland, the Adults with Incapacity (Scotland) Act 2000 provides a range of options to address the problems of those who are “incapacitated”. Broadly, it covers powers of attorney, guardianship, access to funds and intervention orders. In this article we will look at the main steps involved in progressing an application for guardianship, and comment on the issues which tend to arise in practice.

Guiding aims

It is important to understand the main principles that underpin the 2000 Act. These highlight that a guardianship order is a serious infringement of a person’s rights, and the order must ultimately be for the adult’s benefit if it is to be granted.

The main principles are:

• No intervention in the affairs of an adult, unless the intervention will benefit the adult and the benefit cannot be achieved without the intervention.
• The intervention shall be the least restrictive option for the adult.
• Account must be taken of the present and past wishes and feelings of the adult as far as they can be ascertained, and the views of the nearest relative of the adult, the primary carer, and any guardian or continuing attorney or welfare attorney who has powers (and any other person whom the sheriff directs to be consulted).
• Any guardian shall, so far as reasonable and practicable, encourage the adult to exercise whatever skills he has concerning his property, financial affairs or personal welfare and to develop such new skills.

The procedure

An application can be made under s 57 of the 2000 Act, by any person claiming an interest in the property, financial affairs or personal welfare of an adult, to the sheriff, for an order appointing an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.

In order to progress a guardianship application, it is important first to meet with the applicant (the person wishing to become guardian) to take full details as to the adult’s circumstances. This meeting allows us, as solicitors, an insight into the adult’s personal situation and care needs. The applicant is usually a close family member, although solicitors are often also appointed as guardians, particularly if they have acted for the adult in the past.

The next step is for a summary application to be drafted, which sets out the facts of the case and craves the various different powers you are seeking for the applicant. Broadly, you can apply for financial powers (e.g. to deal with a bank account, to sell shares or to sell the adult’s home), and/or welfare powers (e.g. to make decisions regarding the adult’s personal welfare, such as which nursing home would be most suitable). The powers craved should be tailored to the adult’s personal circumstances: the full range of powers should not be automatically craved if they are not needed or appropriate.

In addition to the summary application, reports which give information as to the level and nature of the adult’s incapacity are required for the sheriff to consider. Section 57(3) requires an examination and assessment of the adult (carried out not more than 30 days before the lodging of the application) by:

(a) at least two medical practitioners (one of whom in a case where the incapacity is by reason of mental disorder must be a medical practitioner who has special experience in the diagnosis or treatment of mental disorder);

(b) where the application relates to personal welfare, the mental health officer, containing their opinion as to the general appropriateness of the order sought, and as to the suitability of the individual nominated;

(c) where the application relates only to property or financial affairs, by a person who has sufficient knowledge to make such a report. (This person can be a relative, close friend or neighbour.)

The timing of the reports is crucial, in order to ensure that the information before the sheriff is as up to date as possible. It is important to speak with all the professionals involved to ensure that the timescales are complied with. Complications such as the adult having moved GP’s practice or a psychiatrist being on holiday can delay matters considerably, so communication is vital.

Our practice is to write to the medical professionals involved, to put them on notice that a report will be required in due course, as this tends to mean things run more smoothly. We also, when requesting the medical report, ask the professionals involved to give as much detail as possible as to the adult’s condition so that the sheriff can be sure as to the level of incapacity. We ask them to avoid giving a test score (without describing what the test involves), or simply giving an opinion that the adult is incapable without further explanation. The reports should be as detailed as possible to ensure that there is no risk of delay by the sheriff having to call for further reports.

Once the application is lodged and a warrant obtained, intimation is sent to all of the adult’s relatives and to the primary carer, in order that they can object to/comment on the application if they wish. Usually there tends to be agreement as to these matters; however occasionally there can be disagreement as to the suitability of the proposed guardian or the nature of the powers sought. (For example, family members may feel that financial guardianship is appropriate but not welfare guardianship.) All who receive intimation are informed of the hearing date, which is usually about four or five weeks from date of lodging the application. Anyone with an interest is able to attend and address the sheriff on matters which they think should be heard.

If there is an urgent matter which needs to be dealt with quickly – for example, the adult requires to be moved to the appropriate nursing home or funds need to be released from their bank account to meet the costs of nursing care – an interim hearing can be set down to look specifically at that issue. The sheriff may feel it appropriate to grant one or two interim powers to allow the proposed guardian to action these matters, for the benefit of the adult.

At the hearing

The hearing takes place in a closed court and involves the sheriff checking that he or she is satisfied that;

(a) the adult is incapable in relation to decisions about, or acting to safeguard and promote, their interest in their property, financial affairs or personal welfare, and is likely to continue to be so incapable; and

(b) no other means provided by or under the Act would be sufficient to enable the adult’s interest in their property, financial affairs or personal welfare to be safeguarded and promoted.

If the sheriff is satisfied, it is likely that the application will be granted. Usually, there is only one hearing although if there is any conflict or objection to the application, the sheriff can continue the hearing for further investigations. The adult may have a curator appointed to give their opinion, as an independent person, to the court as to what is in the adult’s best interests. This can be very helpful when there is disagreement here. It is important for the solicitor appearing at the hearing to have a full working knowledge of the case, given the significant nature of the order which could be granted at the hearing. Sheriffs rely on solicitors to inform them of the specifics of each case and most are keen to find out how the adult is doing on a day-to-day basis.

The guardian is normally appointed for three years, but other periods, including an indefinite period, can be granted on cause shown. Issues of cost must be taken into account – if the incapacity is lifelong or the adult’s condition is likely to deteriorate, craving for the guardianship to be of permanent duration can minimise costs. However, again, the adult’s personal circumstances and medical condition must be taken into account to ensure that the length of the order is appropriate.

Caution requirements

Guardians are normally required to take out a bond of caution before they can begin acting, to indemnify those who may suffer financial loss as a result of the guardian acting fraudulently or negligently.

The issue of caution has proved a difficult one in practice. Until recently, there have only been two insurance companies offering bonds of caution and they imposed certain conditions on guardians: for example, a requirement to have a solicitor who would be a joint signatory on any bank account and have joint control over any investments. These types of conditions have proved quite onerous in practice and are not in line with the spirit of the Act. Additionally, large premiums are levied which seem disproportionate when taking into account the value of some estates. Another problematic area is the length of time it can take to deal with applications for bonds of caution – two to four months is not uncommon. During this period the guardian cannot act, even though matters may have become pressing.

Section 58(6) of the 2000 Act allows the sheriff to dispense with caution if it cannot be found. However, few are willing to do so if the estate is a large one.

The Office of the Public Guardian (OPG) has taken the initiative regarding this matter and has negotiated terms with HSBC Insurance Brokers to provide another caution service (Journal, September, 31). It involves a simplified application process for all cases (especially in estates below £500,000) which allow an automatic presumption of the guardian’s suitability if they have been appointed by the court and the OPG is involved to supervise. HSBC will issue confirmation of caution to the majority of guardians by post and to the OPG (electronically) within two working days of HSBC’s receipt of the application. Additionally, the OPG has agreed to issue the guardian with a certificate of appointment the following working day. The OPG has also been able to negotiate a less expensive annual premium scale – this commences at £30 for an estate of £5,000, £200 for an estate of £100,000 and £1,000 for an estate of £500,000.

After the order is granted

Once the guardianship order has been granted, the OPG will write to the guardian with dates by which he/she must submit an inventory of the adult’s assets and debts and a management plan. The inventory generally has to be submitted within three months and the management plan one month later.

The inventory must include the values of the assets and debts as at the date of the guardianship order, and must be supported by statements or written confirmation of balances by the asset holders.

In the management plan, the guardian must advise the OPG what they intend to do with the adult’s assets by way of investment, rationalising assets and, if appropriate, inheritance tax planning. Both the inventory and the management plan have to be approved by the OPG before the guardian can deal with the adult’s affairs.

If the adult has a property that is to be sold, the guardian must apply for specific permission to the OPG before he/she can put it on the market.

Help from the OPG

This is a relatively new area of law and developments in practice continue apace. The Office of the Public Guardian is always helpful and we find it an invaluable resource in dealing with applications (see www.publicguardian-scotland.gov.uk). In conclusion, the most important thing to bear in mind when dealing with a guardianship application is that each and every application will be different and must be tailored to the adult’s personal circumstances, to ensure that the order can truly work in their best interests.