Scottish Sheriff Court Decisions

F B Applicant

This is an application brought in terms of section 53(5)(b) of the Adults with Incapacity (Scotland) Act 2000, in which the applicant, who is the son of an adult, now aged 85, and who is now incapable of taking decisions regarding her own financial affairs, as defined in section 1(6) of the said Act, seeks the authority of the Court to authorise him to take certain steps with regard to her affairs.

Intervention Orders are a statutory creature of section 53 of the Act of 2000, and are designed generally to be used in situations where a specific action or series of actions is required in order to regulate the affairs of an adult who is no longer capable of doing so for himself or herself. Where long term involvement in such affairs is necessary, then a Guardianship Order under section 57 is appropriate. (There is a statutory provision (section 58(3)) that where the Court is satisfied that the matter can be dealt with by an Intervention Order rather than a Guardianship Order, it may treat an application for a Guardianship Order as an application for an Intervention Order, but not the other way round.)

In what I am sure will become in time the key provision of section 53, namely subsection 9, it is provided that "Anything done under an intervention order shall have the same effect as if done by the adult if he had the capacity to do so". The only limitations on the exercise of that provision, as contained in sections 48(2) and 64(2) do not apply here and can therefore be ignored for present purposes.

What, therefore, is the potential scope of Intervention Orders ? Mr Adrian Ward, in his standard work on this subject (Adult Incapacity - 2003), discusses the matter generally in chapter 10. Subject to the limitation already mentioned, he points out, at para 10-34, that there is no provision for the scope of these orders or the conditions under which powers under them may be exercised to be defined or limited by regulations, and the scope is therefore potentially very wide. He concludes that they may therefore authorise anything, provided that it was something the adult could lawfully have done with unimpaired capacity, that it relates to the adult's property, financial affairs, or personal welfare, it must be possible to frame an order authorising someone to take the action or make the decision, and not prohibited by the previously referred to exclusions.

Mr Ward states that if the order sought is not excluded by any of these criteria, and if it can be shown that to grant it would be in accordance with the general principles of the Act, then it should be granted and not to do so would be a denial of justice. At para 10-34 he says that cases will arise to test the criteria he mentions, both as to their validity and limits, and that where the granting of an Intervention Order would appear to accord with the general principles, "advisers are likely to be under a professional duty to test those limits" if necessary, their approach not being limited by what could or could not be done under the previous law.

In the passage from his book which I have quoted, and since there were at the time of writing no reported cases, the only example he gives is a hypothetical one, where a solicitor seeks to sign a will on behalf of a client who has lost the mental capacity to do so herself. It has of course long been possible for a solicitor to take such action, without authority from a court, on behalf of a client who has the mental but not the physical capacity to do so.

As Mr Ward states, therefore, and I respectfully agree with him and adopt his reasoning, this provision is likely to be ground-breaking. In the course of the calendar year of 2004, I conducted 114 hearings on Guardianship and Intervention Orders, and by 10 May 2005, I had already conducted another 58. Most of these were for Guardianship Orders, but there were a number of Intervention Orders sought, and granted, in situations where, e.g. some conveyancing or executory business had been commenced but not completed at the stage when the adult ceased to have the capacity to conclude it.

Broadly speaking, the adults whose cases have come before the court can be grouped into 3 categories; firstly, and by far the most numerous, are those adults, often quite elderly, who are suffering from Alzheimer's Disease or some other form of dementia; secondly, there is a group of persons, often quite young, who were born with some form of learning difficulty, and where there may also be a physical incapacity also; and thirdly there is a group of persons, of all ages, who have suffered some traumatic brain injury which has led to incapacity.

Although the general principles of the Act have to be applied equally to all adults concerned, I have found it to be the case that the nature of intervention sought differs as between the categories set out, and that in some cases, relevant considerations are easier to establish than in others. For example, the Act requires the Court to have regard to the present and past wishes of the adult in deciding upon a determination, (section 1(4)(a)), and clearly it is likely to be the case that more information is available about an adult's past wishes when the adult falls into the first category of persons I have mentioned above.

Often, in cases where the adult is no longer capable of looking after himself or herself and now requires to live in a Home, that person is the owner of heritable property which is now lying empty, deteriorating and vulnerable, and where there is no prospect of the adult returning to it. In many such cases, the proceeds are needed to pay for the continuing cost of care of the adult. A number of cases have sought an Intervention Order to authorise the applicant to dispose of heritable property and invest the free proceeds in such a way as to permit this. (Where wider and continuing financial powers are sought, Guardianship is the appropriate order).

Again, there have been cases where the spouse of the adult has died recently, and that person's will named the adult as executor, but unfortunately, the adult has now lost the capacity to enter into the office and give instructions to discharge it. In that situation, applications have been brought forward in order to authorise the completion of the executory business in such a way as to order properly the affairs of the deceased spouse, and then make proper regulation of the adult's own affairs possible.

In some cases where the adult fell into the third category I mentioned above, there is an issue of an award either of damages in a court action, or under the Criminal Injuries Compensation Scheme, and authority has been sought, and granted, to negotiate such awards. (Again, some such awards are very substantial, and the need for ongoing administration of such estates would normally require Guardianship powers, rather than an Intervention Order).

This falls into one of the common classes of case I have just been discussing, but is a sufficiently novel example of it to merit reporting. The adult's late husband worked as a coal miner. In common with other such workers, he appears to have developed lung disease as a result of industrial exposure to dust. On his behalf, a claim had been lodged for compensation under the relevant Government scheme operated under the auspices of the DTI. As his widow, she had been made an offer in settlement of his claim, which is being handled on her behalf by a firm of solicitors who are on a panel of solicitors who have been approved by the DTI to handle such claims. On account of her superseding incapacity, they can no longer conclude the matter on her behalf, since she cannot give instructions to do so.

Part of his claim, which was for solatium, falls into his estate, but that can only be finally settled upon the confirmation of an executor. Sadly, she is no longer capable of discharging that office or completing confirmation. The other part of the claim is hers, for loss of his society, and she can no longer give instructions to settle that aspect either. All of the compensation received, both directly by her, and on her succession to her late husband's estate, will be used for her ultimate benefit with regard to her future care and the costs thereof.

Accordingly, the application before the court is presented by Mr Frank Irvine, a respected specialist in these matters, but who is not a member of the firm which is acting in the application for compensation, and therefore independent of them, and asks the Court to make an order authorising the applicant to instruct that approved 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 of solicitors 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 is no opposition to the application and no competing contention. As Mr Ward observes, not to authorise the proposed scheme in the particular circumstances here would result in the denial of justice to her, and I am satisfied that this order is necessary and otherwise complies with the legislation.

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.