Scottish Sheriff Court Decisions

AW57/07

Application in respect of CPG

Note :

Background

1. This case was lodged in April 2007 and dealt with on 10 May 2007, when I pronounced the order sought. It was an application in respect of an adult for the appointment to him of a guardian in respect of his financial and property affairs. The adult was manifestly an adult with incapacity as defined by the Adults with Incapacity (Scotland) Act 2000, and the application was not opposed.
2. The application was made by, and sought the appointment of, a solicitor who enjoys the highest reputation as a practitioner who is experienced in this field, commands complete respect, and is thoroughly responsible. That solicitor was eminently suitable for appointment.
3. One of the powers sought, and granted, was in a standard format, and was included to ensure that the guardian appointed received appropriate remuneration for the performance of skilled professional services. The clause reads as follows:- "To employ solicitors, factors, stockbrokers, investment managers, bankers or other agents and delegate to them such powers as she thinks fit, act herself in her capacity as a qualified solicitor in Scotland, and pay herself if so acting and for acting as guardian, the usual professional remuneration".
4. The adult's estate was very modest, and I thought it appropriate that there should be no obligation to fix caution, as that would diminish it still further, particularly in a situation where fees were being charged, and I fixed caution at nil, which was the appropriate course I was wont to adopt in the days before the reforms of the Adult Support and Protection (Scotland) Act 2007 allowed the court to dispense with caution.

The Present Problem

5. I heard nothing more about it until July 2009, when the guardian intimated to the court an appeal against a decision taken by the Public Guardian on 26 March 2009.
6. The guardian had been administering the estate in the first year and had submitted an application for payment therefor to the Public Guardian. Section 68(6) of the Act provides that any remuneration payable to the guardian and the amount of outlays to be allowed shall be fixed by the Public Guardian, and provides that "in fixing the remuneration to be paid to the guardian, the Public Guardian shall take into account the value of the estate". Section 68(8) provides that a decision by the Public Guardian as to the remuneration payable and the outlays allowable to the guardian may be appealed to the sheriff, whose decision shall be final.
7. In the present case, the guardian had made application for remuneration, the Public Guardian had fixed it, the guardian had applied for an increase in the amount so fixed, the Public Guardian had allowed an uplift, but the guardian was still dissatisfied with the figure fixed, and exercised the right of appeal to the sheriff.
8. I understand that this is the first case where this has taken place.
9. The Public Guardian has exercised generally the power to fix the remuneration of guardians by publishing a table of remuneration for persons acting as financial guardians. The value of the adult's estate was £21,000. Based on the published table, the contents of which are well known to those members of the legal profession who act as financial guardians, the remuneration payable for the year was £500. After further representations by the guardian, the Public Guardian allowed an uplift of £350, to a total of £850. The remuneration claimed by the guardian for the year was £2647.20.
10. The Public Guardian, in comments made available to the court, referred to her principal function being to ensure that the property and financial interests of an adult with incapacity are safeguarded. She advised that remuneration is fixed as a percentage of the moveable estate at year end, and that uplift may be permitted where the guardian has been required to attend to matters that fall outwith what may be considered routine guardianship duties. It was submitted that one reading of the power contained in the interlocutor gave the guardian the power to determine her own rate of pay, contrary to the provision of section 68(6).
11. The alternative reading of the power was suggested to be that if required to act as solicitor, the guardian may be paid the usual professional rate for a solicitor, and that when acting as guardian, the solicitor may be paid the usual professional rate for guardians, being that established in the published scale.
12. The Public Guardian submitted that if the former interpretation was correct, there would be a disparity between lay and professional guardians, and would be unduly burdensome for the administration of the Office of the Public Guardian who would have to assess the merits of the sum claimed in every case, rather than being able to rely on a set scale.
13. The detailed account which was submitted showed the need to attend weekly on the adult in order to pay over cash for his weekly expenses, and the sum of £30 was claimed for each such visit.
14. I was anxious that the position of the Public Guardian was fully explored, and fixed a hearing with the intention that she be represented at it. In the event, the court was favoured with the attendance of the Public Guardian herself, which was of very considerable assistance, as she was able to refer to the practice and practicalities in all similar cases which have been dealt with by her Office. I am very grateful to the Public Guardian for her assistance and attendance. By virtue of the terms of section 6(2)(da) of the Act, the Public Guardian is authorised to take part as a party in any proceedings before a court where she considers it necessary to do so to safeguard the property or financial affairs of an adult who is incapable for the purposes of this Act.
15. It was explained on behalf of the guardian that in the first year of operation of the estate, considerable work was required in order to regularise the adult's affairs, deal with creditors, and so on. It had also been determined that his weekly needs would be met by the payment of a modest cash sum, and that it was necessary to have someone attend personally at the adult's home where he still lives to give him this. It was explained that the vast bulk of the actual work done on his behalf was undertaken by a paralegal in the employ of the guardian. The adult does not have a welfare guardian, so the work required is over and above the normal routine in other cases.
16. The Public Guardian was able to advise however, that the level of involvement with the adult in this case, while perhaps unusual for a professional guardian, is not unusual for lay guardians, many of whom have to make visits to the adult and perform financial tasks to a similar, if not greater, extent. She was able to advise that she had recognised the additional strictly legal work which the guardian had carried out here, by authorising an uplift, but maintained that the remainder of the claim truly represented the performance of the typical function of a guardian, as opposed to a solicitor.
17. It was her contention that if all of the work was allowed to be charged at the rate appropriate to a solicitor, the already modest estate would very quickly be depleted, and that would mean that she was not doing her duty by preserving the estate as far as possible.

Resolution

18. I have to accept that the difficulty here may have arisen by my granting the power in the terms sought without recognising that it may create this precise problem. On reflection, I am quite clear that I intended to authorise the guardian to receive proper payment of professional fees for carrying out work of a strictly legal nature, but that work which fell into the category of that expected to be performed qua guardian should be remunerated as such, and that on the basis of the published scales, subject always to the possibility of uplift, as in fact happened here.
19. In short, I accept the argument of the Public Guardian that the proper construction of the power granted is the one which she contended for and as set out in paragraph 11 of this Note. That means that professional persons who act as financial guardians should expect to be remunerated for so doing on the basis of receiving a percentage of the value of the moveable estate, as set out in tables published by the Public Guardian, but that where they perform tasks which clearly involve the exercise of their professional expertise and are performed in that capacity, they are entitled to be paid the appropriate professional remuneration for that.
20. The appeal will accordingly be refused.