Scottish Sheriff Court Decisions

Following intimation, the case called again on 22 November 2004, when I was advised that Helen Telford, a sister of the adult, wished to respond to the application, as did some other relatives of the adult. I was told at that stage that none of the relatives was opposed to the principle of financial guardianship, but that there was a view that there should be joint guardians in place, with another relative being guardian along with the Applicant. No interim powers were sought at that stage, I ordered answers to be lodged within 7 days, and I continued the case until 6 December to determine further procedure.

Answers were lodged timeously on behalf of Mrs Telford, together with some supporting productions, and on 6 December I heard submissions on the competing viewpoints. The Office of the Public Guardian made a brief observation relating to an aspect of the terms of the AWI(8), but this did not delay consideration of the matter.

The application seeks a broad range of financial powers to be granted to the proposed guardian in order to deal with the adult's affairs. She is 79 years old, and, as the medical certificates disclose, is suffering from Alzheimer's Disease. She is clearly unable to manage even basic financial matters on her own behalf. She formerly resided at the house she shared with her late husband William Logie at 23 Silvergrove Street, Bridgeton, Glasgow, but is now resident at a Nursing Home in the same area, where she is settled. She would not be capable of independent living and is unable to return to live in her own home.

Her financial estate is in fact substantial. When her late husband died on 29 January 2004, he left heritable estate (the former matrimonial home) worth about £105,000, and moveable estate worth about £371,537. There were no children, and all of this estate passes to the adult. The total estate for confirmation amounts to £441,500.08, and a certificate has been issued to the executor-nominate (who is a solicitor, and not the Applicant) in terms of Mr Logie's will. There are bank and Building Society accounts, insurance policies, and shareholdings, and it is clear that financial management of a high order is required. In addition, since she cannot return to the former home, it will have to be sold, in all probability. She also has moveable estate in her own right amounting to some £35,000.

The Applicant is, as stated, the niece of the adult, who had one sister, Helen Telford, and a number of other nieces and nephews, all of whom received intimation of the application. Ultimately, only Helen Telford (the Respondent) chose to make representations, although certain others submitted letters, to which I will return.

Her primary submission was that she should be appointed as joint guardian along with the Applicant, but if the Court considered joint guardianship inappropriate, then she invited the Court to refuse to appoint the Applicant to that office and to appoint the Respondent instead.

Craving the Court in the course of answers to a Petition to appoint the Respondent to be Guardian raises a competency point. Strictly speaking, that is an application, and in terms of paragraph 3.16.8(1) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) Amendment (Adults with Incapacity) 2001 (sic), any application subsequent to an initial application considered by the sheriff shall take the form of a minute lodged in the process. That means that although answers can properly challenge the grant of guardianship to the actual Applicant, they cannot be used to put forward an alternative candidate for appointment. There was no Minute lodged here.

Indeed, the view has been expressed to me (see John Arthur v Peter Arthur AWI 14/04, Glasgow sheriff Court, Unreported, 7 December 2004) that the person seeking appointment in terms of such a Minute requires to comply with the report lodging provisions of section 57 of the Act, which the Respondent in this present case did not do either. For the reasons I stated in that case (Arthur, supra), I am not persuaded that it is necessary for such a person to comply with the provisions of section 57(3), since section 59 provides that I may appoint as guardian any person whom I consider to be suitable for appointment and who consents to being appointed, and I have already held that that may entitle the appointment of a person who was not originally an applicant for appointment in the process at all (which, as a matter of fact, is the course I did adopt with regard to financial powers in Arthur, supra).

The position taken by the Respondent that there should be joint guardianship does raise another competency issue, having regard to the terms of section 62 of the Act, and I will deal with that later.

It must be said at once that her averments do not contain any material designed to suggest that the Applicant is not a suitable person to be appointed as guardian. Rather, they state simply that the Respondent is prepared to act, either jointly or alone. She has previous experience of the office of executrix, The only really positive averment is that the Respondent apparently considers that it would be in the adult's interests to have her family more widely represented in the administration of her affairs. No real reason is given for saying that. She avers that the Applicant did not consult with the family in general prior to lodging her application, and did not advise them of the death of the adult's husband (in January 2004). Finally, she avers that she has canvassed the views of other family members and received letters which are incorporated in the pleadings.

For the sake of completeness, these letters are from Margaret Stanton (niece), who objects to the Applicant being granted sole guardianship and complains that no inventory has been produced of personal items in the adult's estate, Leslie Brown (nephew), who states that he thinks that the Applicant is not a suitable candidate for guardianship, but then, confusingly, says that he would prefer joint guardianship between the Applicant and the Respondent (which of course means that the Applicant would have to be a suitable person), or sole guardianship in the name of the Respondent. to be appointed, David Brown (nephew), who states that the Applicant is not a suitable person to be a guardian "on her own" and would prefer joint guardianship with the Respondent (which, again, means that the Applicant would be a suitable person for appointment) or the appointment of the Respondent, Ian Brown (nephew), who states a similar position to David Brown, Mrs F I Brown (sister-in-law), who states that the Respondent should be guardian or joint guardian, Miss C A Brown (niece), who objects to the Applicant being sole guardian, and who would prefer the Respondent to be sole or joint guardian, George Brown (brother), who does not think the Applicant to be the most suitable person to be appointed but who would not object to joint guardianship by both Applicant and Respondent, and Derek Brown (nephew), who would prefer either the Respondent to be appointed, or to have joint guardianship with the Applicant.

Applicant

The Applicant moved me to grant the application, and stressed that not only was there material before the Court in the AWI(8) to support the proposition that the Applicant was suitable for appointment, but also that there was nothing in the answers to suggest that she was not suitable for appointment. I was referred to the factors set out in section 59(4) of the Act which the Court must have regard to in determining if an individual is suitable for appointment as guardian. These are; the accessibility of the applicant to the adult and the primary carer, the ability of the individual to carry out the functions, any likely conflict of interest, any undue concentration of power which would be likely to arise, any adverse effects which the appointment would have on the interests of the adult, and any other appropriate matters.

It was said that there were no matters contained in the answers to cast doubt on the suitability of the Applicant, who satisfied all the relevant criteria. Properly read, it was said, all that the Respondent was saying was that she also was a suitable candidate. As to a suggestion that the family should be more widely represented, while that may the Respondent's wishes. It was hard to see what reason was being advanced for that need.

In response to the allegation that the Applicant did not consult with other family members prior to lodging the Application, it was accepted that she had not done so, but the reason was that when Mr Logie died in January 2004, his Will, dated 13 June 2000, revealed that he had appointed a solicitor to be his executor, but that he had also specifically stated that he appointed the Applicant to be "Trustee and Guardian to my wife". That plainly showed the trust he had in her, and she was contacted by the executor and made aware of this provision (she is not a beneficiary), and consented to act in this capacity. The adult's estate represents only about 10 per cent of the overall value of the total estate of herself and her husband.

As to the authors of the letters, the Applicant commented that with regard to the observations of Margaret Stanton, there was no material suggesting that the Applicant was not suitable. The answer to the point about the inventory is that the Applicant is not the executor of the estate and that is not her responsibility. It was said that the Applicant had had no contact with Leslie Brown for 30 years, and hardly any contact with David Brown, which was the same position with regard to Ian Brown. She did not really know who F I Brown is, and has never met C A Brown. Neither George Brown nor Derek Brown object to the Applicant having guardianship, albeit jointly. Leslie, David, Ian and C A Brown are all members of the same family, and there was some form of split between the branches of the family many years ago, for reasons not known to the Applicant.

I was then referred to the provisions of section 62 of the Act which regulates the situation where two or more persons are appointed joint guardians. Section 62(2) provides that a joint appointment shall not be made unless the individuals are parents, siblings or children of the adult (which is not the position here), or where the Court is satisfied that in the circumstances it is appropriate to appoint individuals who are not so related to the adult.

I have to say in the passing that this provision does seem to be unduly restrictive, and I am not convinced that there is any need for the restriction contained in section 62(2)(a).

Be that as it may, the submission was that because the Applicant and the Respondent were on opposite sides of the family divide, great practical difficulties would exist and it would be difficult to establish a proper working relationship. Finally, I was urged to take the view that nothing would be gained by holding any form of proof on the matter, which would be likely to be unsavoury and unhelpful. In any events there were no averments to justify that course of action.

I was reminded of the guiding principles set out in section 1 of the Act, and, there being no dispute on the principle of appointment, thereby satisfying section 1(2), and it being accepted that what was proposed was the least restrictive option in relation to the adult, satisfying section 1(3), that left the provisions of section 1(4), taking account of the views of the present and past wishes of the adult, and the wishes of other relevant persons. The wishes of the adult are not known, so that left the views of the nearest relative, the Respondent, and others as revealed in the letters.

These views in summary are that sole guardianship is not satisfactory and that there has been a real issue with lack of consultation. It was accepted that some weight had to be given to the terms of Mr Logie's Will. As to suitability, and the provisions of section 59, it was accepted that it could not be submitted that the Applicant was unsuitable, but could be submitted that she would be helped in her task by the Respondent. Any difficulty in communication in the past leading to lack of contact was less important than the interests of the adult, and the Respondent was worried about an undue concentration of powers, though no explanation was given for holding that view. There is of course a duty on joint guardians to consult (section 62(7)), and a mechanism for resolving disputes (section 62(8)), and it was submitted that appointment of both the Applicant and the Respondent was competent, by virtue of the Court's general powers in section 3(1). It was said that to grant the application would involve ignoring the wishes of the relatives, though that did not explain why none of them, including the Respondent, had actually come forward with an application.

Nothing was said about the willingness or ability of the Respondent to co-operate. It was said that the adult's interests would be best served by her family having a say in her care and wellbeing, though, again, I should point out that this is not an application for welfare powers.

Finally, I was asked to refuse the application if I felt that joint guardianship was not appropriate, though no reason was given for so doing. Also, it was submitted that I could appoint the Respondent alone, though, once again, no reasons were given for adopting that position.

Competency

There are two issues:-

Firstly, as I ruled in the case of Arthur (supra), the Court may appoint as guardian a person who has not lodged reports in accordance with the provisions of section 57(3). The Respondent here has not lodged reports in accordance with that provision. To follow the logic of my earlier decision, I still maintain that I would be entitled to appoint even a person who was not a party to the original application, provided that person consents, and as I have already pointed out, in the case of Arthur (supra) I appointed as financial guardian a person who had been neither the Applicant nor the Respondent. That is competent because the person appointed there had not made any application to appointment, but on learning of the difficulty which had arisen there, indicated a willingness to accept appointment and then consented to it.

The difference between that case and this however, is that in that case, the Respondent had lodged a Minute also, in terms of the relevant provision of the Act of Sederunt I have quoted above, whereas in the present case, the Respondent did not lodge a separate Minute in the process which was commenced by the Application.

I therefore take the view that the attempt by this Respondent to have herself appointed guardian, either solely or jointly, is an application subsequent to the initial application by the Applicant, and ought to have taken the form of a Minute in the original process. It is not sufficient to make this claim for appointment in Answers to the original Application. That means that her application is incompetent.

Secondly, even if I am wrong in my view about the first point, there is the wording of section 62(1)(a) to be considered. Section 62(1)(a) provides , "An application may be made to the sheriff by two or more individuals seeking appointment, for their appointment as joint guardians to an adult..." That seems to me to comprehend a different state of affairs than the one which exists here.

It seems to me that the situation provides for two or more individuals making joint application together, in the same application, with both of them wishing appointment as joint individuals. It does not permit of an application by one person, opposed by another, with the Court being invited to appoint them both as a fall back position, remembering that the opposing application should be in the form of a separate Minute. The section begins with the words "An application", and not with the single word "Application".

That means that the attempt by the Respondent to have herself appointed as joint guardian is not competent in terms of section 62, and she cannot have herself appointed as sole guardian under that provision. In the course of the calendar year of 2004, I conducted 114 hearings and two full proofs in respect of applications made under the Act. It was not uncommon for me to be referred to the terms of section 3(1) of the Act with the suggestion that it allows me some form of dispensing power. In general terms, I do not accept that, and prefer to construe that provision narrowly.

The Act provides the framework, in detailed provisions, for making arrangements for the management of the welfare and finances of those adults who have not the capacity to make decisions in such matters themselves. With a view to avoiding general uncertainty, and avoiding the possibility of a whole raft of ad hoc decisions, I do not consider it generally appropriate for the Court to dispense with these provisions unless there is a clear statutory authority for that.

For present purposes, I consider the operative words of section 3(1) to be that in an application under the Act, which the application by Carol Cooke is, I may make "such consequential or ancillary order, provision or direction as I consider appropriate". I would not regard the decision to appoint a Respondent as joint guardian with the Applicant, where the application runs in the name of one person only, to be a consequential or ancillary order or provision. It is certainly not consequential to the application, nor ancillary to it.

I therefore take the view that the appointment of the Respondent as joint guardian is not competent under this aspect either.

Having said that, recognising that I may be wrong to have come to the view on competency which I did, and in any event in deference to the submissions made on the merits of the case, I am quite prepared to rule on those also.

I have no difficulty in coming to a view that I should grant the application made by the Applicant, appointing her sole guardian, and with all the powers which she seeks. She will require to find caution of £500,000 within 8 weeks of the grant of appointment, and having regard to the age of the adult, her deteriorating condition, and the financial complexity of the case, the appointment will be for an indefinite period. A separate interlocutor has been issued detailing the precise powers granted, in accordance with the practice of the Office of the Public Guardian who will register its terms, but not those of this Note.

I am satisfied that intervention is necessary, that it will benefit the adult, and that that benefit cannot reasonably be achieved without that intervention. It is the least restrictive option. The wishes of the adult cannot be ascertained, but I have taken account of the Respondent's views and those of the primary carer in determining if intervention is to be made, and if so, what intervention, and I have taken account of the views of all those others who expressed views.

I consider the Applicant to be suitable for appointment. She consents to appointment. I am satisfied that she is aware of the Adult's circumstances and condition and the needs arising from that, and of the functions of a guardian. She is accessible to the adult, has the ability to carry out the functions of guardian, there is no likely conflict of interest between them, so far as I am aware, and her appointment will not create an undue concentration of power or any adverse effects on her interests. She is not the executor of Mr Logie's estate, nor a beneficiary in it.

Further, I accept the arguments made in submission by the Applicant. Nothing has been said to suggest that she is not suitable to be appointed. Nothing was said to suggest that the Respondent and her family were actively involved with the adult in the recent past, and no reason was given which persuaded me that wider representation for her family was necessary or desirable.

I regard the provision in Mr Logie's Will relative to the Applicant as highly significant and indicative of his wishes and intentions. I regard the thrust of the letters produced, all of them, to be that the writers would prefer joint guardianship, with the Applicant being one of them, and they have in fact no objection to her being involved, in some capacity. I accept that there may well be practical difficulties in joint guardians who have been on the opposite side of a family divide working satisfactorily in co-operation, and the possible need to invoke the Court's rulings involves further cumbersome procedure. No hearing of evidence is justified in this case. Experience of two such hearings has shown that they can be extremely acrimonious and unpleasant. In this case, it is also unnecessary.

By not acting in accord with the wishes expressed in the letters, I do not accept that I have disregarded the views of the writers. I have, as the section requires me to, taken account of them. Nothing was said about the Respondent's ability or willingness to co-operate with the Applicant, no reason was given to justify refusing the application, and no reason was given for appointing the Respondent alone. I have not heard sufficient information about her to enable me to determine whether the requirements of section 59 are satisfied in her case, whereas I do have that information about the Applicant. It is significant that none of those who expressed an interest in Mrs Logie's affairs thought it appropriate to come forward with an application in their own name, and I include the Respondent in that.

I shall accordingly grant the application, appointing the Applicant as guardian to Isabella Logie, with the range of powers relating to her property and financial affairs which are sought. The Applicant's expenses will come out of the estate of then Adult. The Respondent must be responsible for her own expenses in connection with this case.