Martin Monaghan looks at a case clarifying the appointment of Guardians.

It used to be the case where there were competing Guardianship applications that the court would require a competing Minute in the same process. However, following the decision of the Second Division of the Inner House of the Court of Session by Aberdeen Council Applicant and Respondent -v- JM Respondent and Appellant CSIH 65 there is now no need for a competing Minute.

It has also been confirmed that: there is no requirement for any competing Guardian to acquire a further Mental Health Officer report to accompany the competing claim - circumstances may require the court may ask for such a report in terms of section 3 of the Adults with Incapacity (Scotland) Act 2000 as amended (“the Act”); and that the court did indeed have power in terms of section 59 of the Act to appoint “any individual” whom the court considered suitable and who consented to the appointment.

The Inner House determined that where there was a competing claim from anyone other than the original Applicant, the proper approach was that a counter proposal was not separate from the Application to which it was a response nor was it an Application subsequent to an earlier one. This meant that a separate competing Minute to be appointed as Guardian was not required as this was not considered “subsequent” in terms of rule 3.16.8 of PART XVI of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 as amended.

Critically, the Inner House went on to say that what was envisaged here was a counter proposal for the appointment of a different Guardian made during the currency of the application which the Sheriff is still “considering” and may be advanced in Answers to the Summary Application.

This decision means where anyone wishes to be appointed Guardian in place of the proposed Applicant, Answers to the Minute should be lodged containing a counterclaim for this alternative appointment. Whilst the court did not narrate in practical drafting terms precisely how this was to be addressed, it seems these Answers should comprise appropriate craves followed by the usual numbered paragraphs addressing the statements of fact combined with whatever narrative is needed to address the competing Guardian’s claim. Whether pleas-in-law are also needed will depend upon applicable Sheriff Principal Practice notes and local practice.

Clarification is awaited from the Scottish Legal Aid Board on how this change in procedure will be addressed. However, it seems reasonable to anticipate that when acting for the original Applicant there should only be an amendment to the existing legal aid certificate to address the counterclaim instead of having to submit additional legal aid and legal advice and assistance applications addressing the competing Application.

Similarly, when acting for a competing Guardian, there should only be one application for legal aid to oppose and counterclaim instead of two separate legal aid and legal advice and assistance applications, the first dealing with the lodging of a competing Application and the second with opposing the existing Application.