Scottish Sheriff Court Decisions

GLASGOW : December 2004

The sheriff, having resumed consideration of the cause, allows the defences for the Respondent to be withdrawn, allows the Minute, number 5 of Process to be withdrawn, allows the pursuer to withdraw the Note of Appeal previously lodged, appoints John James Arthur as Welfare Guardian to Mrs Margaret Arthur, appoints Cecilia Brough as Financial Guardian to Mrs Margaret Arthur, all as set out in the interlocutor of 7 December 2004, and decerns

This matter originated on 11 February 2004 as an application by Mr John Arthur to be appointed as Guardian, with both welfare and financial powers, of his mother, Mrs Margaret Arthur (hereafter, to use the terminology of the Act, "the adult"), and who, at the time of the application, was 96 years of age. The application proceeded under the provisions of the Adults with Incapacity (Scotland) Act 2000. Most of such applications are unopposed, and, assuming the provisions of the Act are complied with, are granted without difficulty or delay, the court being satisfied that Guardianship is necessary, and that the proposed Guardian is a suitable person to appoint.

Unhappily, that did not prove to be the case here. In the papers originally submitted with the application, it was disclosed that the adult had lived for many years with her grandson, Mr Peter Arthur, who is the nephew of the applicant, and who was recorded as expressing views which indicated that he did not agree that his uncle should be appointed guardian. So it proved. He lodged answers to the original application, contesting the appointment of his uncle, the pursuer, as guardian, and followed that up, on 26 April 2004, with a separate Minute lodged in the process craving that in the event of guardianship being necessary, then he, Peter Arthur, should be appointed guardian instead of his uncle. That made Peter Arthur the respondent.

It is highly unusual for this court to be faced with a competition for the appointment as Guardian. This was the first case in this jurisdiction, (being the largest in Scotland in terms of annual numbers of applications) under the Act where that competition has gone to the length of a proof being necessary to determine the issue. Having now experienced such a hearing, I feel that consideration will have to be given in the future as to whether there is not a better, simpler, speedier, less stressful, and less expensive way to resolve such disputes.

Speaking generally, it might be said that it is obviously unfortunate that family members have been unable to reach agreement on a matter such as this, but of course there is nothing new in there being disputes between close family members over matters affecting their interests, and from time to time the courts have to resolve them. It is doubly unfortunate then, where, as here, the only method which appears to exist to resolve the matter is to conduct contested litigation between two family members, neither of whom would benefit personally from the outcome, and where, without seeking to be overly dramatic, or morbid, time was not exactly on our side. That is an even more pointed consideration when one considers the time which is taken for appeal processes to be exhausted.

The preliminary stages of the proceedings were conducted without delay and a hearing fixed for 7 and 8 October 2004. Unhappily, that proved insufficient time, but fortunately, parties were able to make themselves available for the Monday and Wednesday of the following week, 11 and 13 October, and the case proceeded then too. The adult was 97 on the 1^st November, and one was constantly afraid that the whole matter would be tragically overtaken by events. Eventually, on the morning of the fifth day of evidence, the Respondent being represented by both solicitors and Counsel, I was advised that he was withdrawing his opposition.

Since certain matters of concern to me had arisen during the course of the hearing, I continued the case for enquiries to be made as to the availability of an independent person to become financial Guardian. That proved to be possible and I have now appointed the original Pursuer to be Guardian with welfare powers only, and an independent solicitor with experiences of these cases, and who has consented to appointment, to be Guardian with financial powers. I have issued this Note contemporaneously with the Interlocutors making the appointments, because it deals also with an important preliminary point argued on the first morning of the Hearing.

This is an important matter of procedure which affects this case and may affect others in the future. It is not an academic point. I have set out the history of the matter in brief form above, but at an earlier stage of the process, the pursuer gave notice that he objected to the respondent's Minute being considered at all, on the basis that it was incompetent. He could not object to the respondent lodging answers to the application, suggesting either that guardianship itself was not appropriate, or that the proposed guardian, the pursuer, was unsuitable, but if he was correct to say that the Minute was incompetent, the court would have been precluded from considering a proposition that the respondent was a suitable person to be appointed instead, and from considering any evidence to support such a proposition. I had continued consideration of this motion until the date of the hearing. If the respondent had accepted the pursuer's point earlier, he could easily have remedied the suggested defect, but he did not, and therefore periled his position in the hope that the objection was not well founded.

The objection was based on the pursuer's proposition that the respondent had not complied with the mandatory provisions of section 57 of the Act. The respondent entered the process by lodging a Minute in the process originated by the pursuer's application. That was the correct thing to do, having regard to the provisions of the two Acts of Sederunt which prescribe procedure. The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Adults with Incapacity) 2001 [sic] (SSI 142/2001) as amended by an equally tediously named Act of Sederunt (SSI 146/2002) provides, by Rule 3.16.8 that "Unless otherwise prescribed in this Part, or under the 2000 Act, any application or proceedings subsequent to an initial application or proceeding considered by the sheriff shall take the form of a Minute lodged in the process".

"This Part" means in the relevant part of the principal rules which regulate all Summary Applications, being The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999. Since it does not seem to be "otherwise prescribed under the 2000 Act", a Minute is therefore correct.

However, it was argued, because the respondent's Minute was in fact an application for a Guardianship order in favour of the respondent, it required to comply with section 57 of the Act, which, by section 57(3)(a) and (b), makes it mandatory for such an application to be accompanied by two medical reports in prescribed form from medical practitioners who have recently examined the Adult, one of which practitioners must be approved under the Mental Health (Scotland) Act 1984, and a report from the Mental Health Officer containing his opinion as to the general appropriateness of the order sought and, critically, the suitability of the individual nominated for appointment. No such reports were lodged here, therefore the Minute was incompetent, with the consequences previously set out.

The respondent's answer was that there is nothing in the Act which requires a Minute to comply with those quoted provisions of section 57, and that having regard to the purpose which those reports are designed to serve, the minute was competent. I was directed to section 58, headed "Disposal of application" which provides, reading it short, by section 58(1) that if the sheriff is satisfied on two matters, (that the adult is incapable and that no other method than guardianship is sufficient) he may grant the application. But, and this is important, these applications are not for the award of "guardianship" in general, they are for the appointment of a particular, nominated person to be appointed as guardian. Section 58 would have been understandable if it had said that if the sheriff was satisfied on three matters (the adult is incapable, no other method is sufficient, and that the proposed guardian is suitable) then he may grant the application. It seems at first odd that an application may be granted without the sheriff being satisfied about the suitability of the proposed guardian.

The answer, it was said, is to be found in section 59, which provides that the sheriff may appoint as guardian "any" individual he considers suitable and who consents to appointment, and, if the application relates to welfare powers only may appoint the chief social work officer of the local authority.

It is to be noted that section 60, which relates to the renewal of a guardianship order, expressly applies the "lodging of reports" provisions of section 57, (by section 60(3)) and so does section 74 for variation of a guardianship order (by section 74(4)), but that section 63, which provides for the appointment of a substitute guardian in place of the original, does not apply those provisions. It therefore appears that not all applications under the act require the lodging of these reports.

Ultimately, I concluded that the meaning of the words of section 59 that the sheriff may appoint "any individual" whom he considers suitable, and who consents, mean precisely what they say, and that the court is not limited to appointing only the original applicant, or even the person nominated in the minute. Provided the court is satisfied as to suitability, it may appoint any person who consents, and who was not even in the original process, whether by application or minute. In the case of a competition, the court may conclude that neither party is suitable, and instead appoint someone else known to the court to be suitable. By definition, such an appointee, who was not a party to the process, cannot have complied with the requirement to lodge reports.

I believe that that may be the explanation for my previous question about the, at first, curious wording of section 58. If section 59 had begun by saying that the sheriff may appoint the person who has applied under section 57 provided the court finds that person suitable, then there would have been very considerable force in the objection raised by the pursuer; but it does not say that. It says I may appoint "any individual" I find suitable, and who consents. By the same token, it would appear to be correct that in a welfare application only, made by a relative of the adult, I may decide not to appoint that applicant, but instead appoint the chief social work officer of the local authority, even thought that person is neither a party to the application (and therefore cannot have lodged any reports), and has not even had his consent to appointment sought.

It was also suggested that in fact the report lodged by the applicant in compliance with section 57 does contain information relating to the respondent (which is correct) and that anyway, in pragmatic terms there was compliance, but it does not in fact contain an opinion as to the suitability of the respondent to be appointed, and in any event that is an ad hoc argument. I have tried to determine this matter on the basis of substantive law applicable to all such cases, not on the particular facts of this case.

Owing to the urgency of this case, and the need to avoid delay, I did not issue this opinion on the competency point separately, but indicated my ruling verbally in open court at the conclusion of the argument, in the terms I have just set out, being conscious of the need nonetheless to explain my reasons ultimately in writing, and I have now done so.