l6. Termination of Case - General
Where a Ward dies the Curator's appointment falls and he/she has no power to transact further with the Ward's estate. If the Curator does so he/she requires to account to the Executor for such transactions. Where a Curator dies the Bond of Caution covers his/her Representative's actings and accordingly the Representative has power to carry out any necessary acts until such time as a new Curator is appointed. It is the Accountant's practice, therefore, to require the late Curator's Representative to lodge a final Account down to the date on which the new Curator is appointed.
On the death of the Ward the Curator should immediately advise the Accountant thereof and forward an Extract Certificate of Death. In due course the Curator will require to lodge a final Account of his/her intromissions down to the date of the Ward's death. The Accountant's instructions for closing the case will be given in the Notes to his Audit Report on the Account. The Accountant will insist on the estate being handed over to a party with a title thereto. Accordingly unless the estate will be exhausted in meeting the funeral and deathbed expenses etc, the Accountant will normally insist on Confirmation in favour of an Executor being exhibited. The Accountant will also require a detailed receipt by the Executor for the estate as at close of the Curator's final account, annotated to the effect that the estate is subject to the closing expenses of the Curatory.
(b) Administrative Discharge 1
Where a Ward has died or recovers, or a minor Ward has become entitled to administer his/her estate or the estate has been exhausted, procedure has been introduced which enables the Curator (without employing law agents or going back to the Court) to obtain from the Accountant an Administrative Discharge. In order to obtain an Administrative Discharge the Curator merely makes application by letter to the Accountant for a Certificate of Discharge. In cases of recovery, satisfactory medical evidence must be produced. At the same time the Curator sends a Notice to all those with an interest in the Ward's estate to the effect that an application has been made for a Certificate of Discharge and that they have a right to lodge objections within 21 days. (A style Notice is included at Appendix C (page 33) to these Notes). If no objections are received and the Accountant has himself no objections to a discharge being granted, he will issue a Certificate of Discharge and advise the Court that such a certificate has been issued. If objections are received the Accountant considers them and then issues his determination thereon. The Curator or the person lodging the objections has l4 days to appeal to the Sheriff against the Accountant's determination. After considering the matter in chambers the Sheriff may direct the Accountant to sign the Certificate of Discharge or appoint the Curator to lodge a petition for his/her discharge or make such further order as he considers appropriate. It should be noted that a judicial application for discharge will not be accepted by the Court where an Administrative Discharge is available.
An Administrative Discharge may also be available on the death of a Curator if (a) the estate is substantially exhausted or (b) the Ward dies before a new Curator is appointed.
Full instructions on the procedure are issued by the Accountant with his Audit Report on the Curator's final Account.
(i) Where new Appointment Necessary .
Where a Curator dies or wishes to resign it will still be necessary to petition the Court for the appointment of a new Curator and such petitions should include a crave for the discharge of the previous Curator and where appropriate his Representatives.
(ii) Ward Recovered.
Where the Ward has recovered a petition may be presented for the Recall of the Curatory supported by 2 medical certificates. The petition should include a crave for the discharge of the Curator.
1Law Reform (Misc Prov) (Scotland) Act 1990
Act of Sederunt (Rules of the Court of Session) 1994 Rule 61.31
Act of Sederunt (Sheriff Court Judicial Factors Rules) 1992 Rule 19
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