Adults with incapacity
Loss of capacity in adults can take various forms. It may arise through: old age; dementia; mental health conditions; a sudden accident or injury; or it may be that the individual has had a severe learning disability from birth. If an adult loses the capacity to manage their property, finances, or personal welfare when they do not have a Power of Attorney in place, the only way to acquire legal authority to manage the individual’s affairs is to apply for a guardianship or intervention order pursuant to the Adults with Incapacity (Scotland) Act 2000 (“the 2000 Act”).
A guardianship order is applied for when the adult needs long-term help with decisions, whereas an intervention order is when you are applying to carry out a specific action or actions only.
Applications can be in respect of health and personal welfare only (welfare guardianship); property and financial affairs only (financial guardianship); or a combination of both. Applications may be made to the court by any individual claiming to have an interest in the welfare of the adult with incapacity.
In this particular case, HS was 95 and suffering from dementia and cognitive impairment, which meant that she was unable to make informed decisions about her own welfare and required assistance with medication, dietary needs and personal care. Given the perceived risks for HS and concerns about her welfare, following an application to the court by Renfrewshire Council, its Chief Social Work Officer was appointed as HS’s Welfare Guardian pursuant to the 2000 Act.
Before an appointed Welfare Guardian exercises their powers to make any ‘intervention’ they are required by law to consider, in so far as it is reasonable and practicable to do so, the views of the adult’s ‘nearest relative’. The term ‘intervention’ is not defined by the 2000 Act but was taken by the court in this case to mean ‘any decision, act or deliberate omission in any way affecting the welfare, affairs, interests or status of the adult with incapacity’. ‘Nearest Relative’ on the other hand is defined by a ranking list of priority from spouse to niece or nephew and where there are multiple siblings or children, the nearest relative will be the eldest.
In this case, HS’s nearest relative would have been her eldest of three daughters. However, the eldest daughter had a number of health problems which meant she was unable to effectively carry out her role and her two younger sisters (of differing ages) were in dispute as to who should be appointed in her place. The two younger sisters had been estranged from each other and feuding for some time (including in relation to their mother’s care), whilst the youngest sister was also estranged from the eldest sister.
The Sheriff’s Decision
Sheriff Mohan took a dim view of the behaviour of the two younger sisters and referred to the case as a “sorry state of affairs”. Ultimately, Sheriff Mohan ordered that none of the three sisters should exercise the functions as nearest relative because doing so would present risks to the wellbeing of the adult with incapacity, would likely lead to more stress in the relationship between the siblings; more public venting; and a duplication in the work of care home staff and social work. Additionally, Sheriff Mohan clarified that the position of ‘nearest relative’ could only be held by one individual - there could not be joint or additional nearest relatives.
This decision emphasises that the best interests of the adult with incapacity are central in guardianship decisions.
It is never guaranteed that Guardianship or Intervention Orders will be granted by the court and seeking to obtain those can be a drawn-out, stressful, and expensive process. There are a number of factors the court must assess, having been provided with necessary expert reports and there is scope for further disputes as part of the process, as is evidenced by this case.
Acting early by putting in place a protective Power of Attorney is an integral part of planning for the future and this case reaffirms the importance of that. Had there been a Power of Attorney in place in the first place, the Guardianship Order would not have been necessary and the dispute regarding the ‘nearest relative’ would not have arisen.
For more information on Powers of Attorney, including what they are and how they work to empower your loved ones before they lose capacity, please see our previous article here.
For more information on the process involved in applying for guardianship, please see our previous article here.
How can we help?
Our Private Wealth and Tax team has a wealth of experience in relation to Guardianship and Powers of Attorney. If you would like to find out more, please contact Emma Read, Senior Solicitor in our Private Wealth and Tax team here.
For all contentious issues, please contact Thomas McFarlane, Associate in our Dispute Resolution and Litigation team here.
Thomas and Emma are both members of our cross-departmental Contentious Executries, Trusts and Tax team, drawing on the expertise of contentious and non-contentious specialists from across the firm for the benefit of our clients. Find out more here.