Scottish Sheriff Court Decisions

I have been asked to consider an application made by her in November 2005 to grant an order under section 71(1) of the Act of 2000 to replace her as guardian. It appears that she has now left the firm with which she was associated when the original order was made, and it is now desired to replace her with another solicitor in practice with the firm who acted when the original order was first made, there being a continuing need for financial management of the adult's affairs. I have not warranted the action yet, for reasons which are contained herein, hence this opinion does not contain a court reference number.

A number of considerations arise in connection with the application.

Firstly, there is the question of the choice of the appropriate forum in which to bring the application. In the case of Kirkland (AW 21/04 Glasgow Sheriff Court 14 May 2004), I expressed the opinion that in a case of precisely this sort, (of which there are likely to be many as practitioners appointed under old curatories retire from practice but need to ensure that another suitable person is appointed to replace them), it is competent to bring applications before the Sheriff Court under the provisions of section 71(1), rather than have to revive the process in the Court of Session, and then apply of new to the Sheriff Court. (New petitions for curatories are of course now not competent, the office having been abolished by section 80 of the 2000 Act).

Section 71(1)(a) provides that the sheriff, on an application made to him by an adult subject to guardianship or by any person claiming an interest in the adult's property, financial affairs or personal welfare may replace a guardian by an individual or office holder nominated in the application if he is satisfied, in relation to an individual, that he is suitable for appointment having regard to the matters set out in section 59(3) to (5) of the Act. The effect of Schedule 4 Paragraph 1 is that any person originally appointed as curator bonis automatically became guardian of the adult on 1 April 2002.

I adhere to the view I expressed in Kirkland (supra) that this provision means that applications of the sort envisaged here can competently be brought in the Sheriff Court, without the need to bring any form of application to the Court of Session, thus saving the need for two sets of expenses.

I also said in that case, and again adhere to this view, that proceeding in this manner does not require the applicant to produce two medical reports in the form specified in section 57(3)(a).

Two other considerations arise which I did not require to consider in Kirkland (supra), but which I have been asked to consider here.

Firstly, what form should the medical evidence take ? I did say in Kirkland (supra) that I would be satisfied with a "short, recent, medical report confirming that there has been no change in the adult's condition". I have now been asked whether such a report needs to be from a medical practitioner approved for the purposes of section 20 of the Mental Health (Scotland) Act 1984 as having special experience in the diagnosis or treatment of mental disorder (these words appearing in section 57(3)(a)).

In my opinion, it does not need to be from such a medical practitioner. This is not an application to which any of the provisions of section 57 apply, therefore, so long as there is produced satisfactory recent medical evidence confirming the continuation of the adult's incapacity, it does not need to be from a practitioner approved under the 1984 Act, or its statutory replacement, the Mental Health (Care and Treatment) (Scotland) Act 2003.

Secondly, and following on from what I have just said, there does not need to be produced a report required for the purposes of section 57(3)(c), (being one in prescribed form based on interview and assessment of the adult carried out not more than 30 days before the lodging of the application, by a person who has sufficient knowledge to make such a report as to the general appropriateness of the order sought and the suitability of the individual nominated to be guardian).

Two important subsidiary matters need to be mentioned as a consequence of the opinions I have just expressed.

Although the "section 20" approval under the 1984 Act has now been superseded by appropriate approval under section 22 of the Act of 2003, (and indeed I am now seeing reference to such approval by way of amendment to the printed version of the prescribed forms), where there is an application which is brought under the provisions of section 57, and is based on a diagnosis of incapacity by reason of mental disorder, the approval must be in terms of Scottish legislation, at least in advance of proposed reform of the 2000 Act.

In a recent case, where jurisdiction was founded on the basis of Schedule 3 Paragraph 1(1)(b), (heritable property situated in Glasgow), and where intervention was sought to sell that property, but where the adult now resided in a nursing home in Northern Ireland, I was presented with a medical certificate, in the prescribed form, but from a practitioner who had been approved for the purposes of the equivalent legislation covering Northern Ireland, but not under the Scottish legislation. Unfortunately, as I read the relevant provisions both of the 1984 Act, and now of the 2003 Act, Scottish Health Boards must maintain a list of practitioners approved by them as having special experience in the diagnosis and treatment of mental disorder, and those lists will not automatically include such specialists approved by Health Boards in Northern Ireland. Accordingly, until the terms of section 57(3)(a) may be amended so as to allow submission of a report by any such specialist as may be approved for the purposes of equivalent legislation in England, Wales or Northern Ireland, then unless the signatory is additionally approved under the provisions of either the 1984 or the 2003 Scottish Acts, the report would not comply with the provisions of section 57.

The second subsidiary matter relates to those cases where a report in the form prescribed by section 57(3)(c) is required. In a number of recent cases, where the proposed guardian is a solicitor in practice, the section 57(3)(c) report, which amongst other things must comment on the suitability of the proposed guardian, has been completed by another, often junior, solicitor employed by the same firm as the proposed guardian.

I do not regard that practice as satisfactory. Since the very beginning of the operation of the Act of 2000, those practitioners who appear before me and who are experienced in the field have stressed to me the importance of transparency in the operation of its provisions. An application may be presented by a firm, seeking the appointment of one of its partners as guardian, with payment of professional fees, and accompanied by a report as to the suitability of that person signed by another member of the same firm. The signatory of such a report is required to state that he has no financial interest in the granting of the application. If a senior partner of a firm is to be appointed as guardian, entitled to charge professional fees, can it really be said that a junior member of the firm has no financial interest, albeit indirectly, in the granting of such an application ? The firm itself does have a financial interest, and so, arguably, do its employees.

And is it really to be expected that a junior member of a firm would report that in his view a senior colleague, and possibly employer, was not a suitable person to be appointed ? One of the criteria of section 59 is accessibility to the adult, but suppose that the person reporting thinks that the proposed guardian, though suitably qualified and experienced, would not be particularly accessible to the adult. In my view, it is quite unfair to ask a colleague in the same form to report in this way. I believe that the necessary quality of transparency can easily be achieved by arranging for another professional colleague, from a different firm, to discharge this function.

Two other matters require to be considered before parting with this application, one relating not only to applications under section 71(1)(a) but also to applications under section 53 and 57, and the other rather particular to an application to replace a person originally appointed to be a curator appointed by the Court of Session with a guardian under the 2000 Act.

Firstly, how is the court to be satisfied as to the suitability of a proposed guardian ? I have said before, in the case of LC (AW 38/05 Glasgow Sheriff Court 19 May 2005) that solicitors must provide material as to the suitability of the proposed appointee by way of averment in the writ.

It should not be difficult for a solicitor to make such averments in a few short sentences which will inform the court, objectively, of the general experience, qualifications, including any positions of responsibility held, and general good character of the person nominated, but unfortunately, this remains an area which most frequently causes delay in processing applications because such averments are either inadequate, or wholly lacking. The court cannot appoint unless satisfied as to suitability. It is not even in my view sufficient to state merely that the proposed appointee is a solicitor, without giving further information as to that person's qualifications for the particular function of administering the (often quite complicated) financial affairs of others. Many solicitors have no experience in that area of work. Also, the requirement of accessibility which is contained in section 59(4)(a) ought to mean that professional people should not be administering the funds of others without ever having any contact with the persons whose funds they are administering.

Nor is it sufficient, in my view, to aver merely that the applicant believes that he or she is a suitable person for appointment, or that the drafter of the writ believes so, or even that the present holder of the office believes that the proposed replacement is suitable. The test is clearly objective, and there must be material from which the Court can determine suitability, preferably without the need to delay the application for enquiry.

Secondly, in the case presently before me, I have been asked whether it is necessary to detail the full financial powers sought or whether it is implicit that these are the same as those granted to the present office holder. The answer is straightforward.

The office of curator bonis has been effectively abolished by section 80 and schedule 4 of the 2000 Act. The Petition before the Court of Session which sought the appointment of the present office holder sought that she be appointed as curator bonis "with the usual powers", and was granted in those terms.

As I have again previously mentioned in other cases, when a person is appointed as guardian under the 2000 Act, that person is issued with a certificate of appointment by the Office of the Public Guardian, and that certificate is the authority to act. When produced to any financial institution, it should be immediately apparent that the person so appointed has authority to do what is proposed. Precision is therefore all important, and it is not sufficient to refer to "the usual powers" of a curator bonis, or to "those powers previously granted" to someone else, or to any other similarly vague expression, where the actual powers can only be determined by reference to other documents. I have often referred to the need to have "stand alone interlocutors", which should be capable of interpretation without reference to any other interlocutor or document.

The application should therefore specify, in detail, what precise powers are sought, so that these will appear in the interlocutor pronounced by the court, and then be transferred to the certificate issued by the OPG. That way, those having cause to read the document should have no doubt as to what is permitted, just as, in the expression of an interdict, those affected by it should have no doubt as to what is not permitted.