Scottish Sheriff Court Decisions

Renewal of Transitional Guardianships under the Adults with Incapacity (Scotland) Act 2000

Application in respect of LG

Glasgow : 11 September 2009 Sheriff J A Baird, Esq., Advocate

The Background

1. From at least 1991, when the Scottish Law Commission published a discussion paper on the subject, proposals were made to reform the system by which our law regulated the way in which the affairs of adults who did not have the capacity to order their own affairs should best be managed. Following publication of the Commission's Report on the subject in 1995, and extensive campaigning for reform, the matter was taken up by the Scottish Government and resulted in the enactment of the Adults with Incapacity (Scotland) Act 2000.
2. The Act established a completely new regime for making provision as to the property, financial affairs and personal welfare of adults who are incapable by reason of mental disorder or inability to communicate (these words are taken from the long title of the Act), and after the commencement of the Act, any person appointed to discharge those functions was to be termed a Guardian, appointed by order of a court, the court being the Sheriff Court, as opposed to the Court of Session.
3. Applications for appointment are to be made under the terms of section 57, and where such an application is granted, the sheriff is directed to make an order appointing the applicant to be the guardian of the adult. The Act establishes a principle that such appointments should be time limited, the default period being 3 years, though the sheriff has discretion to make the period longer, including for an indefinite period. All of that is to be found in section 58(4), the wording of which is critical for the purposes of what follows.
4. I accordingly quote it in full:- "Where the sheriff grants an application under section 57 he shall make an order (in this Act referred to as a "guardianship order") appointing the individual or office holder nominated in the application to be the guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown, he may determine".
5. That provision establishes that an individual appointed under the provisions of the new scheme for regulating the affairs of adults who are not capable of doing so themselves is to be called a guardian, but is a guardian appointed in terms of an order granted by the sheriff, called a guardianship order, and that the person's appointment is, at least in the default position, to have a time limit, meaning that application will have to be made in due course for renewal of such appointment (assuming the conditions to justify it still exist).
6. Prior to the passing of this Act, of course, there existed under the former law a number of offices, the holders of which had been appointed to regulate the affairs of adults who had not the capacity to do so themselves, and these included the offices of curator bonis, tutor-dative, and tutor-at-law. Many such appointments had been made before the passing of this Act, mainly by the Court of Session, and were still in force. It had not been the practice when making such appointments to apply a time limit to them so as to require a process of renewal.

Renewal of Guardianships granted under the Act

7. The relevant provisions of the Act, under which applications for guardianship began to be made, came onto force on 1 April 2002. Assuming that a guardianship order has been made under the Act, and that it had a time limit attached to it, such appointments which have had to be renewed have been subject to the other provisions of the Act. If a guardian so appointed omitted to bring an application for renewal of an order prior to the date of the expiry of the appointment, the order lapsed, and so did the powers which had been granted.
8. An application for renewal of a guardianship order granted by the sheriff is to be brought by minute in the original proceedings (Act of Sederunt (Summary Applications etc Rules) 1999 (SI 1999/929), paragraph 3.16.8. That means that such an application is "an application or other proceedings" as described in paragraph 3.16.2 of those Rules, meaning that on receipt of it, the sheriff must fix a hearing, may order answers to be lodged within a specified period, and must appoint service and intimation.

Service of Applications for First Appointment

9. In the case of applications for first appointment, service is to be made on, inter alia, the adult, the nearest relative, the primary carer, the Public Guardian (whose office was created by section 6 of the Act), The Mental Welfare Commission, (where the application relates to personal welfare) and to the local authority.

Service of Applications for Renewal of Orders

10. For applications for renewal of orders appointing a guardian, the Rules regulating the procedure by which they are to be determined were amended in 2008 so as to make such a minute regulated by Chapter 14 of the Ordinary Cause Rules. Whatever the reasons were for making such applications subject to a different form of process, Chapter 14 still provides that the sheriff may make an order for answers, order intimation, and fix a hearing. That same amendment, introduced by Act of Sederunt (SSI 2008/111) provides (paragraph 3.16.8(5)) that in the case of a renewal, service is to be on the local authority and, in the case of personal welfare) on the Mental Welfare Commission.
11. On the face of it, this is a puzzling provision. It would appear to mean that there is no obligation to serve renewal applications on the adult, the nearest relative, the primary carer or the Public Guardian.
12. I find it inconceivable that I would refrain from ordering intimation of a renewal application on all of those parties.
13. If it is argued that the provision does not say that service should be only on the local authority or MWC as appropriate, that ignores the fact that many applications for renewal are brought by the local authority, who would appear therefore to have an obligation to serve it on themselves, and that the MWC is already a party on whom such an application would have to be served in the case of personal welfare.
14. But there is a fundamental objection to this provision, assuming it has the meaning it appears to have, and that is that is that it appears to me to be inconsistent with the rights conferred by the European Convention of Human Rights, as enshrined in our law, for a court to order the award to another person of powers over the personal welfare and property and financial affairs of an adult without first intimating the intention to do so to the adult and the adult's nearest relative.
15. In addition, since the whole scheme is regulated by the Public Guardian, I find it inconceivable that I would not order intimation on the Public Guardian.
16. I was alerted to the proposed enactment of that Act of Sederunt after it had been signed but before it was implemented, and made the observations set out above at that time, but it has been implemented. I am equally aware that other concerned parties have queried the effect of those amending provisions, so far without further amendment.
17. For the avoidance of doubt, and despite the terms of paragraph 3.16.8 (5), in the case of applications for renewal, it is still the practice of this court to order intimation and service on the adult, the nearest relative, the primary carer, and the Public Guardian. I have the power to do so by virtue of paragraph 3.16.4(f), which provides that service of "the application or other proceedings" shall be made on "any other person directed by the sheriff".

Applications for Renewal presented before the expiry of the time limit but not determined until after the expiry of the time limit

18. For present purposes, the critical cases are those where a guardianship order has been made, the time limit attaching to it is about to expire and the guardian presents an application for renewal before the expiry of the time, but where the hearing of the application will not take place before the expiry of the time limit.
19. Whatever view is taken of the provisions regarding service of applications for renewal, it is clear that there will still require to be a period for intimation and service, and the possible lodging of answers, together with the need to fix a date for a hearing. That inevitably means that some applications lodged before their expiry date will not be able to be considered and determined before their expiry, and that the date assigned for the hearing of the application, at which they will be determined, will be after their expiry. (I am aware that in terms of the section 60 4A of the Act, inserted into it by the Adult Support and Protection (Scotland) Act 2007, (hereafter "the 2007 Act"), the sheriff can determine such an application without hearing the parties, but the sheriff cannot determine such an application without ordering intimation, which means intimating a date on which it will be determined, whether after hearing parties or not.)

The Issue on Renewal

20. The question then becomes: what happens to the powers granted to a guardian where there was a time limit of the period of the order, it is about to expire, an application has been made for renewal prior to the date of expiry, but the date for determination of that application falls after the date of the expiry ?
21. For cases involving renewal of guardianship orders made by a sheriff under the provisions of the Act, the answer is to be found in section 60(1), which has to be quoted in full, viz :- "At any time before the end of a period in respect of which a guardianship order has been made or renewed, an application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such an application is so made, the order shall continue to have effect until the application is determined".
22. For cases where the sheriff made an order with a time limit, that provision is straightforward; the order remains in force pending determination, provided application for renewal is made before its expiry. If not made before expiry, it lapses.
23. But, it must be noted, this provision relates to "a guardianship order", which is defined in section 58(4) as the name given to an order once the sheriff grants an application under section 57, and the subsection goes on to refer to the renewal of "such order" and "the order" which is to continue to have effect pending determination. It is not the guardianship which continues to have effect, it is the order conferring it, and the order is one which was granted by the sheriff.

Transitional Guardianships

24. What then of the position of those who under the old law were curators bonis, tutors-dative, or tutors-at-law ? Schedule 4 of the Act regulated the position with regard to them, and provided, in paragraphs 1(2), 1(4) and 1(6) respectively, that on the relevant date, which was 1 April 2002, any person holding such office became the guardian of the adult with power to manage the adult's property or financial affairs (curators), with the powers conferred by the court on appointment (tutors-dative) or with the power to manage the adult's property or financial affairs or personal welfare (tutors-at-law).
25. Such individuals thereby became guardians, but only by operation of statute, not in terms of an order granted by a sheriff.
26. In the original Act, it perhaps was overlooked that most (if not all) of such appointments had been made without any time limit, which would have meant that the holders of such appointment never required to seek renewal of their powers. When the opportunity to amend the Act of 2000 arose with the passing of the 2007 Act, schedule 4(6)(3) was amended, with the practical effect of requiring the holders of such offices to seek renewal of their appointments.
27. Reading the new provision short in order to illustrate the practical effect of it, paragraph 6(3) now provides that there is to be a process of renewal, and that persons who became guardians by operation of statute are to apply for renewal before the expiry of a period of 2 years after the date on which section 60(17) of the 2007 Act came in to force (2 years after the adult reached 16 in the case of certain curator bonis appointments). The operative date, for the majority of such cases, was 5 October 2007, which means that the critical date for bringing applications to renew such appointments is fast approaching, and is 5 October 2009.

The Issue on Renewal of Transitional Guardianships

28. So, the question has to be asked once again: in respect of those I have described as being transitional guardians, (those who became guardians by operation of statute), and who now have to make application for renewal by 5 October 2009, what happens to their powers where the application is made before 5 October 2009, but the application will not be determined until after it ?
29. On the face of it, the answer ought to be provided by the remaining provisions of schedule 4 paragraph 6 of the 2000 Act as amended by the 2007 Act.
30. My fear however, is that the Act of 2000 was imperfectly amended, so that there remains a risk that in the cases just mentioned, the powers of the guardian to act are not continued in force after 5 October 2009, and that between 5 October 2009 and the date when such applications are granted, the powers of the guardian to act will not have continued in force.

The Amending Provision

31. This is to be found in paragraph 6(3)(a) and (b) and 6(3A) of schedule 4. That sub-paragraph opens with the words "Section 60 shall apply to a person who has become a guardian to an adult by virtue of this schedule and who was a curator bonis, tutor dative or tutor-at-law to that adult..." Pausing there therefore, that seems to show an intent to provide for the persons therein listed an opportunity similar to that of guardians appointed by the sheriff under section 57, to have their powers continue in force after 5 October 2009, provided the application is made before then, even though it may not be determined until after then.
32. However, the provision goes on to say, "and, for the purpose of that application", which must mean "an application for renewal of such order" where they appear in section 60, but, as I have already stressed, such transitional guardians had not had such an order granted in their favour.
33. It continues, "for the reference in section 60(1) to a period in respect of which a guardianship order has been made or renewed there shall be substituted a reference [to the 2 year period dating from 5 October 2007]".
34. That means that for transitional guardians, to whom section 60 explicitly applies, that subsection now reads, "At any time before the end of [the period of 2 years from 5 October 2007] an application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such application is so made, the order shall continue to have effect until the application has been granted".
35. That wording removes the difficulty created by the original opening words referring to a guardianship order having been made, because such guardians were not appointed to act under such an order, and they are guardians, having been made that by schedule 4 to the Act of 2000, and although seeming to imply that the powers of such guardians will continue to have effect until the application has been granted, even if after 5 October 2009, it does not in fact say that, since it retains the words, "application...to the sheriff...for the renewal of such order,... and where such application is so made, the order shall continue to have effect..."
36. What is meant by "such order", "such application" and "the order" in the passage quoted ? To my mind, it can only refer to a guardianship order, which is an order granted by a sheriff after application under section 57, and that is not what we are dealing with here. Transitional guardians were not appointed under such an order, so there is no such order to renew. The words "such application" have to refer to an application for "such order", and the word "the" before "order" similarly has to refer to the order in respect of which application to renew is being made.
37. But, I repeat, there is no such order in the case of transitional guardians, and therefore, the references to such an order quoted in the second half of the amended subsection do not make sense. Transitional guardians get a certificate from the Public Guardian, but that is not an order granted by the sheriff.
38. That means one has to look at the provisions of paragraph 6(3A) to see if the answer is provided. That sub-paragraph contains 3 further sub-paragraphs, the first two of which are straightforward and self explanatory, and the third of which is not.
39. The problem arises with the words "shall cease to be authorised to act" which appear in the preamble. Again, I have to quote it in full:- A person who has become a guardian to an adult by virtue of this schedule and who was a curator bonis, tutor dative or tutor-in-law to that adult shall cease to be authorised to act as that adult's guardian - (a) where the person does not apply for renewal of guardianship within the 2 year period [running from 5 October 2007], on the expiry of that period; (b) where - (i) the person applies for such a renewal within that period; and (ii) the sheriff refuses that application, on the date of the refusal; (c) where - (i) the person applies for such a renewal within that period; and (ii) the sheriff grants the application, in accordance with the provisions of this Act.
40. In my view, the grammatical construction of that provision is execrable, but at least parts (a) and (b) are understandable. If such a person omitted to apply at all, the powers that person held lapse on 5 October 2009, and where application was made before 5 October 2009, but determined after that date and refused, they remained in force until the date of refusal (though why could that not have been expressed in the positive, rather than the negative ?), but, what is the meaning of the content of (c) ?
41. At first blush, it offends against common sense to say that a person shall cease to be authorised to do something, which that person has applied to be able to do, and which application has been granted. And, it is to be noted that whereas the words "on the date of refusal" appear at the end of (b), containing the clear implication that they subsist until that date, the words " on the date of granting" do not appear at the end of (c). If they had done, it would be implied that they did subsist until that date.
42. Instead, one finds the words "in accordance with the provisions of this Act". With respect, it is very difficult to see what that is meant to mean. If the provision had been that the person "continued to be authorised to act" until the application was granted in accordance with the provisions of the Act, it might have contained the implication that the power to act subsisted until the date of the determination of the application, which was then granted in accordance with the provisions of the Act, meaning that the authority to act as a transitional guardian then ceased, being replaced instantly with authority to act as a guardian under the Act. It does not say that. It says that the authority ceases when the sheriff grants the application.
43. And even then, does that answer the question posed above where the application was made before 5 October 2009, but granted after it ? Arguably, it does not. If granting an application means that a transitional guardian is now a guardian appointed by an order made under the Act, which such a person would be, that person then, but only then in the absence of a saving provision, becomes subject to all the other provisions of the Act, the critical one of which for the purposes of this discussion is section 60(1), and that still does not give any meaning to the words in the letter half of the subsection highlighted earlier. It would allow a construction of the provision to the effect that section 60(1) does provide for the continuation of the order when any subsequent application is made for renewal, but it seems to me that it still does not provide an answer to the question posed above.
44. All of this would have been unnecessary if the schedule contained a provision to the effect that those persons who became guardians by operation of the schedule were to be treated for the purposes of section 60 as if they had been persons appointed by the sheriff under a guardianship order. So far as I can see, it contains no such provision.
45. The matter is thrown into further confusion by the terms of section 60(4) of the Act. Remembering that schedule 4 paragraph 6(3) says that section 60 (i.e. all of it) applies to the persons whose position I am considering, and not just section 60(1), that means that section 60(4) applies to them, and that provides that the default period for orders granted on renewal is to be 5 years, and not 3, but in doing so, it replaces all of the original wording of section 58(4) quoted above, and says that "Where the sheriff grants an application under section 60, he may continue the guardianship order [my emphasis] for a period of 5 years..." So, once again, the thing which is continued is not guardianship per se, but the guardianship order, and at the risk of repeating myself, the transitional guardians were not appointed under such an order.
46. If there is a definitive answer to this problem, I do not see it as being immediately obvious and to be found where it should be, namely in schedule 4. This issue is current and pressing. Time does not permit the holding of a hearing and the making of full submissions which might have the effect of persuading me that the powers to act of transitional guardians do continue in force after 5 October 2009 until the date when the application for renewal is granted, provided that application is made before 5 October 2009.
47. It is important that I point out that the application before me, and which sparked my enquiry, causing me to have to wrestle with the legislation in the way I have done (Why do we have to do this so often now ? Why is so much of our current legislation expressed in ways which are so difficult to comprehend ? See e.g. the Opinions of Lord Reed at paragraph 5, Lord Carloway at paragraph 14, and Lord Marnoch passim in the case of Scottish Ministers v Mental Health Tribunal for Scotland [2009]CSIH 66) does not itself fall into error. That application, which comes from a curator bonis appointed in July 1992, and correctly in my view, does not seek renewal of an order appointing the minuter as guardian, for there is none, but does seek to renew the appointment of the minuter as guardian, which he is, by operation of statute.

Resolving the Immediate Problem

48. Fortunately, due to another provision of the original Act of 2000, it is possible for the court to provide a mechanism to get round the difficulty I have perceived, assuming it does exist.
49. Section 3(1) provides that in an application or any other proceedings under this act, which the cases I have been describing undoubtedly are, the sheriff may make such consequential or ancillary order, provision or direction as he considers appropriate. Such provisions affording the court discretion have almost disappeared from more contemporary legislation, which increasingly attempt to micro manage every given situation, but let it be noted that under this discretionary provision, it is open to me, in all applications for renewal of transitional guardianships made before 5 October 2009, but which will not be determined until after that, to grant to the applicant all of the powers sought on an interim basis pending determination, and that where the application seeks such powers ad interim or not. Since these are the powers which are currently being exercised by the guardian, such an order clearly continues them in force pending determination of the application.
50. By doing that in every case, I believe that this court through its orders will continue to discharge the duties incumbent on it to ensure that the person and the property of the adults involved are protected, and that guardians acting in good faith will also be protected in their dealings, and not potentially made subject to litigation and actions for reduction of transactions carried out during the critical period. This practice will also protect the profession responsible for bringing such applications who might also find their actions challenged after the event should the views expressed here prove to be correct.
51. I am conscious that the step I am taking and propose to take in all similar applications may in fact be strictly unnecessary, on the basis that the problem I have identified either does not truly exist, or does exist but finds an answer somewhere I have not been able to find. But, time is pressing on and does not permit convening a hearing for a full discussion on the point, and if I have erred in taking the view I have, it is on the side of caution. It is better to be safe than sorry, and nothing is lost by granting these powers ad interim. If they truly already exist by some provision of statute, my orders merely duplicate them. If they do not exist in the period after 5 October 2009 but before the applications are granted, granting them ad interim pending determination does indeed regularise the position.