Guardianship Dispute Case Study

We suspect that our clients are weary of hearing us say:

“Make your Power of Attorney while you are still able.”

The following case study from Aberdeenshire commented upon by HM Connect illustrates the point. When you make a Power of Attorney you yourself decide who to trust with your welfare and personal affairs. If you leave it until it is too late Guardianship will have to be applied for from the Court. The person who applies for guardianship may not be the person you would have chosen to take care of your most personal concerns.

Case Comment:

M v Aberdeenshire Council [2016] G.W.D. 22-417

A recent court opinion serves as a reminder that where guardianship applications are concerned, the decision as to who should be appointed guardian lies with the court only.

In this case, “JM” appealed a decision by Sheriff Summers to make a guardianship order appointing the chief social worker of Aberdeenshire Council as welfare guardian to JM’s brother, (“JC”) as opposed to JM’s own application to be appointed.

JM’s appeal was as follows:

  1. The order appointing the chief social worker should not have been granted; and
  2. JM’s own application should not have been rejected.

The crux of JM’s argument was that there had been a conflict of interest. JM argued that the sheriff’s decision to order the same mental health officer who had previously prepared a report on the chief’s social worker’s suitability to prepare a report in relation to JM resulted in a conflict.

Under the Adults with Incapacity (Scotland) Act 2000 (“the Act”), at least two reports are required by medical practitioners for both financial and welfare applications. The application must be lodged at the latest, 30 days after the report has been carried out.

Financial applications also require a suitability report. The report is often carried out by solicitors; the solicitor must have knowledge and understanding of the Act.

For welfare applications, there must also be a report from the mental health officer of the suitability of the applicant. Again, the application must be lodged within 30 days of these reports.

In this case, Sheriff Principal Derek Pyle, Sheriff Principal Marysia Lewis and Sheriff Nikola Stewart, sitting in the Sheriff Appeal Court, rejected JM’s appeal on the basis that there was no identifiable error in the method in which Sheriff Summers reached his conclusion. Sheriff Principal Pyle stated that the Sheriff Appeal Court had a limited role in reviewing the sheriff’s decision and could not substitute their view of the credibility and reliability of witnesses for the view formed by Sheriff Summers. JM had also not moved that the Appeal Court review the interlocutor of the sheriff which ordered the mental health officer to prepare the second report.

Sheriff Principal Pyle, did however, offer the court’s views on the alleged conflict of interest. Sheriff Principal Pyle referred to an unreported decision from Kilmarnock Sheriff Court, JM v LM (29 May 2009) in which the sheriff commented that it was “unfortunate” that the same mental health officer had not prepared the suitability report for the minute as had prepared the report for the applicant, they went on to say that “it would have been preferable if the same mental health officer had prepared both reports”.

Sheriff Principal Pyle continued with the reminder that the reports required are intended to assist the sheriff only and that it is for the court to assess the value of the report in conjunction with other evidence. The report is only one factor amongst many others that the sheriff must consider. It seems a common misconception amongst individuals that family members will automatically be appointed on application.

The decision in this case serves as an important reminder that individuals should consider granting a Power of Attorney whilst they have capacity.

© HM Connect

When you grant Powers of Attorney you yourself choose who to entrust with your personal affairs.Hastings Legal Lab

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Hastings Legal are members of HM Connect, the biggest networking group of Solicitors in Scotland.

This enables us to keep up to speed with the ever changing legal landscape and offer advice and representation in specialist areas of Scottish law. With HM Connect our clients enjoy the best of both worlds with access to city expertise while keeping their trusted and friendly local adviser.