Scottish Sheriff Court Decisions

        SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND ALLOWAY AT DUMFRIES

2015SCDUMF24

JUDGMENT

of

SHERIFF GEORGE JAMIESON

(On preliminary issue of adult’s incapacity)

In summary application AW10/09 by

A.D.                                                      APPLICANT

For the renewal of his guardianship of

J.G.

 ADULT

                                                _____________________________________________   

Dumfries                                            6 March 2015

Act: Powell (for the Guardian)           Alt: McMurchie (for the Adult)

The sheriff, having resumed consideration of the cause, finds the Adult is incapable in relation to decisions about his financial affairs, and is likely to continue to be so incapable, directs the sheriff clerk to fix a further hearing to enable the court to determine the terms upon and period for which the guardianship should be renewed.

       Sheriff George Jamieson

NOTE

Issue

• [1]The Adult was involved in a road accident while in Northern Ireland serving in the British Army. The High Court in Belfast awarded him substantial damages on condition they be administered by a guardian in Scotland. A curator bonis was appointed by this court, with the curatory later being converted to an adult guardianship under the Adults with Incapacity (Scotland) Act 2000 granted for five years. The guardian applies for a ten year renewal of the guardianship. The Adult submits he is not an adult with incapacity and the guardianship should not be renewed. The parties’ agents did not wish me to refer this issue to a person of skill for determination, or to exercise my powers under sections 3(2) (b) and(c) of the Act to call for further reports and inquiry on the question of incapacity. Instead, they requested that I make a preliminary ruling on the question under sections 1(6), 2(3) and 14 on the material currently available to me.

   

  Incapacity

   

• [2]“Incapable” and “incapacity” are defined by section 1(6). They mean incapable of amongst others “of retaining the memory of decisions” as mentioned in any provision of the Act by reason of mental disorder. “Mental disorder” is defined in accordance with section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (section 87(1), 2000 Act) as including “mental illness however caused or manifested” and is one of the “gateways” to incapacity (Ward, Adult Incapacity, paragraph 4-27). A mental illness includes cognitive impairment of memory as a result of head injury (Oxford Handbook of Psychiatry, pages 130 and 156, consulted per Williamson v McClelland 1913 SC 678 at 680, on the court’s entitlement to consult medical books to assist its determination). An Adult may have capacity in relation to some matters but not others (Ward, Adult Incapacity, paragraphs 1-28 to 1-31); incapacity is specific to a particular matter (Ward, Adult Incapacity, paragraphs 4-23 to 4-28).

   

  Decision

   

• [3]In order to renew the guardianship I must be satisfied amongst others that the Adult is “incapable in relation to decisions about his financial affairs, and is likely to continue to be so incapable” (section 58(1) (a)).I set aside Dr Bhatti’s opinion as contained in his reports as it is contradictory (taking opposite views) and therefore not in my opinion a reliable guide to whether the Adult is capable of investing an estate in excess of £1,000,000. The MHO’s report confirms the Adult’s ongoing memory impairment, which I consider is an important facet of capacity to manage his estate. The Adult conceded he could do this only with physical aids such as a memory book or support from his parents. He has not adduced any evidence to show a significant change in his medical condition since the accident, or to warrant the conclusion that the decisions of the High Court in Northern Ireland, and previously of this court, that he lacked capacity to administer his estate,were unsound. In all these circumstances I am of the opinion that the Adult continues to lack capacity in relation to decisions about his financial affairs and is likely to continue to be so incapable. There is however scope for investigating, in accordance with the Adult’s wishes and feelings (section 1(4) (a)) the extent to which he may be capable of administering part of his estate to cover daily and reasonable capital expenditure. Capacity is not an “either-or” situation; there may be gradations, allowing the estate in the main to be administered by the guardian, but also allowing the Adult freedom to manage specified transactions in accordance with his skills and abilities (see Ward, Adult Incapacity, paragraph 11-32). I have directed the sheriff clerk to fix a further hearing for the court to explore these issues with the parties.