A recent decision by Sheriff Peter Braid in Edinburgh, in the case of Summary Application under the Adults with Incapacity (Scotland) Act 2000 by J, Solicitor in respect of the Adult F, will give practitioners food for thought when applying to have themselves appointed as financial guardian in respect of incapax adults, writes Cameron Shaw.

Practitioners regularly find themselves in a position where clients have lost capacity and the relevant local authority is slow to take decisive action to deal with the adult’s pressing financial and property affairs. In these circumstances who is to act in the adult’s best interests? In practice solicitors can find themselves taking on the mantle of applying for guardianship and having themselves, or a colleague, appointed as guardian in the situations.

In terms of the legislation, local authorities are under a duty under section 57(2) of the Act to take forward a guardianship application, financial or welfare or both, if there is no-one else who is able to take forward the application. However, if the local authority cannot be the adult’s financial guardian, then the local authority will usually seek to have someone appointed from a list of approved financial guardians which the local authority provides to the court.

A recent decision by Sheriff Braid in Edinburgh in respect of the adult F may make solicitors think twice about applying to court on behalf of the their incapax clients who require a financial Guardianship. The Pursuer was seeking to be appointed as financial Guardian in respect of an 87-year-old client. The Pursuer, a solicitor, claimed that she had an interest in the property and financial affairs of the adult. The Pursuer averred that she had developed a close relationship with the adult whilst working for her, that she was familiar with the adult’s finances and that she had an interest in the property and financial affairs of the adult because of the information that the adult had divulged to her. Furthermore, it was averred that the adult had not disclosed the information that she gave to the Pursuer to anyone else. The Pursuer also claimed that her relationship with the adult was more personal than a normal solicitor-client relationship.

Persons with an interest?

Sheriff Braid states in the note of his judgment that he had concerns regarding the nature of the Pursuer’s interest which she claimed entitled her to make the application. In her submissions the Pursuer referred to Adrian Ward, Adult Incapacity (1st Edition) at pages 23 and 24, where the author, after referring to a solicitor’s general duty to society and to serve the interests of justice, goes on to state: “In some cases, the solicitor may be able only to advise and suggest; but should not neglect to do so. In others, the solicitor may well be ‘a person claiming an interest’ or even ‘a person having an interest’.”

Sheriff Braid stated, in terms of persons claiming an interest, that in his view this must mean something more than just a “bald assertion” that the Pursuer has an interest. The Sheriff states that if it was simply that people could claim an interest and thereafter make an application and be appointed then literally any person could bring an action in respect of an adult, which the Sheriff stated cannot be correct.

The Sheriff stated that in the present action he was satisfied that the Pursuer and the adult had a close relationship (albeit of only a year’s duration) and conceded that there is a moral duty to bring forward an application. But the Sheriff took the view that this might have entitled the Pursuer to seek to be appointed as welfare guardian in respect of the Adult, not as a financial guardian. The Sheriff stated that in order to bring forward an application in respect of an adult’s property or finances that the applicant should claim a real interest, in the adult’s finances or property. The Sheriff stated that “real interest” in relation to property and financial affairs of an adult must denote some form of patrimonial interest i.e property or finances that would likely be inherited by the applicant. In this case the Sheriff’s view was that the Pursuer did not have a real interest.

Conflict of Interest?

The Sheriff thereafter states that even if he had found that the Pursuer had an interest there would then be a clear conflict of interest between her interest in the adult’s affairs and her firm’s interests. The Sheriff went on to say that he did not “imply any impropriety whatsoever in the Pursuer’s actings, but it seems to me inherently undesirable that the court should be encouraging actions by firms of solicitors, or partners/employees thereof seeking the appointment of someone within that firm, since there is clearly the potential for conflict and abuse”.

Impact

The Sheriff in his judgment has made it clear that, in his view, any applicant applying for a financial guardianship for a client must have a real interest in the property or financial affairs of the adult. It is not enough to be a trusted advisor of an adult or someone who is perhaps a very long-standing friend. Obviously what constitutes a real interest will be to some extent subjective, but the view taken by Sheriff Braid is that if one is applying to appoint themselves as the guardian of an adult, then the applicant’s interest must be inextricably linked to the property or finances of the adult. The irony is that by imposing this condition where the applicants must be inextricably linked to the property or the finances, could in itself leave the door open to conflict of interest claims with relatives potentially being accused of trying to feather their own nest in their actions as guardians or trying to be appointed as guardians. However, a Sheriff in determining who should be appointed as guardian has to take into account any potential conflict of interest under section 59(4) (c).

This case gives a clear indication from the bench that professional practitioners who seek to appoint themselves as guardians will not automatically be viewed favourably. The Sheriff has correctly indicated that there could well be a conflict of interest for practitioners who are applying for appointment of themselves as financial guardians for their clients and will be remunerated for doing so. It is important to remember that one of the roles of the office of the public Guardian is to oversee Guardians including reviewing the costs associated with the remuneration of Guardians carrying out their role. I think what practitioners can take from this judgement, especially those practising in Edinburgh, is that if a client becomes incapax and requires a financial guardianship or intervention order, the local authority should take this forward in the first instance. This will only increase the demands on local authorities and may inevitably increase delay.