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Managing the timetable

1 March 04

Some practical advice on the procedural requirements relating to guardianship applications

by Adrian Ward

A recent decision in Airdrie Sheriff Court will be welcomed by those who have concerns about managing the procedural timetable in applications for guardianship and intervention orders under Part 6 of the Adults with Incapacity (Scotland) Act 2000. Three reports must accompany each such application. Section 57(3) of the Act provides that each shall be based upon an examination or interview not more than 30 days before the application is lodged in court. Where welfare powers are sought, under section 57(4) notice of intention to make the application must be given to the local authority, and their report (usually by the mental health officer) must be prepared within 21 days of the date of that notice. Good practice is (1) draft the application, (2) send it to the two doctors, asking them to advise when they expect to see the adult, and send it to the local authority advising that the statutory notice may be expected shortly, (3) when the doctors have responded, decide when to give the statutory notice to the local authority, (4) keep in touch with everyone and keep hoping. This usually works, but not always. In the Airdrie case it didn’t because the mental health officer’s report was late, putting both medical reports out of date. The sheriff was asked to exercise his discretion under section 3(1) to allow the application to proceed, but took the view that section 3(1) did not authorise him to do this. He held, however, that it would be clearly contrary to the principles and purpose of the Act to subject the adult to a further examination in such circumstances, and that “shall” in section 57(3) and (4) should be interpreted as directory rather than mandatory. He granted the application. In that case, the adult’s incapacity was described in both medical reports as permanent: this precedent might not apply where incapacity is variable or short-term.

Managing the induciae can also be challenging, in the context of the requirement of summary application rule 3.16.6(1) that the hearing shall take place within 28 days of the interlocutor fixing it, unless the application is to be served on someone outside Europe. It can be helpful (1) to obtain letters from as many persons with an interest as possible (including any overseas) confirming that they have seen the draft application, are in agreement, and dispense with service, and (2) to ask the sheriff clerk to fax the warrant for intimation as soon as it has been issued, to minimise any delay in dispatching the intimations.

When are the reports required?

The Act is explicit about when the three reports are required. They are required for: initial appointment (section 57); renewal (see section 60(3)); appointment of a joint guardian at time of initial application (under section 62(1)(a)); and a variation under section 74 which adds welfare powers to what was previously a financial guardianship, or vice versa (section 74(4)). The three reports are not required for subsequent appointment of a substitute guardian under section 63; replacement, removal or recall under section 71; or variation under section 74, except where the variation would confer for the first time welfare powers upon a guardian who had previously had property and financial powers only, or vice versa; nor are they required for all of the other applications, remits and appeals to the sheriff under the Act. The sheriff does have discretion under section 3(2)(b) and (c) to order reports or make further enquiry, and in cases relating to existing guardianships where reports are not statutorily required it will often be helpful to obtain and produce a simple letter from a doctor confirming, if such be the case, that there have been no significant changes in the adult’s condition and capabilities since the original appointment.

Guardianship powers: clarity and simplicity

It is good practice to relate powers sought to the various possibilities set out in section 64(1), and to refer explicitly to the appropriate paragraphs of that subsection. Paragraphs (b) and (d) subdivide into the alternatives of plenary or limited powers. The introduction of the alternative of limited guardianship where incapacities are partial is one of the Act’s fundamental reforms, bringing to Scotland a characteristic common to most modern jurisdictions. However, not every case requires limited guardianship. Where circumstances and incapacities so require, it is entirely proper to seek, for example, “power to manage the property or financial affairs of the adult in terms of section 64(1)(d)”, without further elaboration. Several such orders have been granted. A variation is to add, without prejudice to the generality of that power, explicit power under section 64(1)(a) to deal with one or more specified “particular matters”. Where plenary powers are inappropriate, the particular powers granted must of course be specified.

Adrian D Ward, Turnbull & Ward, Barrhead