Sheriff grants "novel" incapacity application

Courts must be receptive to novelty, says sheriff making intervention order

News, 17 May 2005

Practitioners will have to be inventive, and the courts receptive to novelty, in the developing area of applications under the Adults with Incapacity Act, according to a sheriff in a new judgment.

Sheriff John Baird granted an application by the son of an 85 year old widow for an intervention order allowing him to settle a claim for damages relating to her late husband.

The applicant's father, a coal miner, had lodged a claim for compensation for lung disease under the Government scheme operated through the DTI. After his death his widow was made an offer in settlement of the claim, which was being handled by a firm on the panel of solicitors approved by the DTI, but due to her superseding incapacity she could not give instructions to accept.

Part of his claim fell into his estate but she was also unable to take up office as executor. All the compensation received would be used for her ultimate benefit in meeting the costs of her future care.

Sheriff Baird observed that the application was presented by Mr Frank Irvine, a respected specialist in these matters, but independent of the firm acting in the application for compensation. It asked the court to make an order authorising the applicant to instruct that firm to negotiate for settlement the claims under the scheme, to receive any funds in settlement thereof and invest them in an appropriate account for the benefit of the adult, and to instruct the same firm to apply to have the applicant confirmed as executor to his late father's estate, in order that his estate, containing any award made to him, can then be wound up and disbursed to her.

There was no opposition to the application and no competing contention. Not to authorise the proposed scheme in the circumstances here, said the sheriff, would result in the denial of justice to the widow, and he was satisfied that the order was necessary and otherwise complied with the legislation.

He concluded by observing: "In other cases, of course, the court may well face greater difficulty in deciding upon applications, particularly if there are competing contentions as to the previously stated wishes of the adult, and there may well be cases where there is actual dispute on the principle of benefit to the adult. Such matters will fall to be determined in the sheriff court, and not the Court of Session, since that is the specific intention of the legislation.

"It is also plainly the case that where there is a lack of mental capacity to act, there is scope for abuse, and in that context, it is important that the procedure involves the court in overseeing and approving what is suggested, that practitioners give the court, in the pleadings, full information which will enable the court to be satisfied, and that full and proper intimation be made to all those who may be affected by the proposed step. In this developing area, practitioners will have to be inventive, and the courts receptive to novelty."

Sheriff Baird's judgment can be read at http://www.scotcourts.gov.uk/opinions/AW25_05.html