10. Powers of Curator and Special Powers
(a) General
A Curator is appointed with the "usual powers" and such powers enable him/her to ingather, realise and invest the estate, pay debts and apply the revenue of the estate for the benefit of the Ward. It is outwith a Curator's normal powers to sell the Ward's home unless it is a matter of extreme necessity, that is, the Ward would have had no option but to sell it. It is, however, within a Curator's normal powers, subject to the Accountant's approval, to sell heritage which is not the Ward's former home as such property is regarded as being held in the nature of an investment. It is also within the Curator's normal powers to give up the tenancy of a house and to sell the furniture therein although special considerations may apply where a Ward is a tenant of a local authority house.
It is outwith the Curator's normal powers to concur in the sale of property liferented by the Ward or renounce a liferent interest.
It is the duty of the Curator to claim legal rights where there is no testamentary provision in favour of the Ward, but it is outwith a Curator's normal powers to claim legal rights in preference to a testamentary provision, special powers being necessary.
Other matters outwith a Curator's normal powers include carrying on a business, entering into a lease which creates a protected tenancy, an agricultural lease, resigning on behalf of the Ward as Trustee, investing in an annuity and encroaching on capital unless the Accountant considers the estate sufficient to support the Ward during his or her lifetime.
Where the income from the estate of a Ward is insufficient for the maintenance of the Ward the Curator may apply to the Accountant of Court for his consent to encroach on the capital of the estate for the purpose of maintaining the Ward.
On an application for encroachment the Accountant of Court may where such encroachment does not exceed 5% of the Capital as at the date of the application consent to the application.
If the Accountant is unable or declines to consent to the application, formal intimation to all interested parties in terms of the Rules of Court will be required.
(b) Procedure for obtaining Additional Powers
There are now 3 different procedures by which additional powers may be obtained:-
(i)by including a crave (ie application) for Special Powers in the Petition for the appointment of the Curator. Where a crave is included in the Petition for appointment the Court will not grant the additional powers immediately, but after the Curator has been appointed and found Caution the Court will, on lodgment of a Motion, remit the Process to the Accountant who will draft his report and issue it to the law agents acting for revision and return.
When returned the report is signed and returned to the Court, who should issue an interlocutor granting or otherwise disposing of the application (in the Court of Session a Motion to grant Special Powers is required).
(ii) by the Curator making an application for Special Powers in terms of Section 7 of the Judicial Factors Act 1849;
Where an application is made in terms of Section 7 of the Judicial Factors Act 1849, the Curator requires to make a formal application to the Accountant detailing the powers required and why (a letter is insufficient). The application must accordingly be signed by the Curator. The Accountant drafts his report and issues it for revision and return.
Thereafter the Curator's application and the Accountant's report are returned to the Curator or his law agents to be incorporated in a Note to the Court. Once service of the Note has been made the Court will deal with any objections and grant or otherwise dispose of the application..
(iii) by an application to the Accountant for his formal Consent in terms of Rules of the Court of Session 61.13 or 61.14 or Sheriff Court Rules 15 or 16.
The Accountant is authorised to give his Consent to encroach on capital in terms of Rule of the Court of Session 61.13 and Sheriff Court Judicial Factors Rule 15. He is also authorised to give his Consent to any powers which may be sought in terms of Section 2(3) of the Trusts (Scotland) Act 1961, in terms of Rule of the Court of Session 61.14 and Sheriff Court Judicial Factors Rule 16.
When an application is made in terms of Court of Session Rule 61.13 or 61.14 or Sheriff Court Rule 15 or 16 the Curator writes to the Accountant stating the powers required and why. The letter must be signed by the Curator personally. At the same time he/she sends in terms of the above Rules a notice by recorded delivery post to, in the case of Rules 61.14 and 16, all those on whom the Petition for appointment was served, plus the petitioner and the cautioner, in the case of Rule 61.13 and 15 all those with an interest in the Ward's estate plus the cautioner advising them of the powers he/she is seeking and that they have a right to object thereto by letter sent to the Accountant within 28 days. The Curator requires to send to the Accountant a copy of the letter served together with the recorded delivery slips and, in due course, provided there are no objections, the Accountant will issue his formal Consent with his official seal thereon. It should be noted, however, that the Accountant will not, in general, deal with objections and that if any objections are received a fresh application for Special Powers will require to be made in order that the Court can consider and deal with the objections unless, of course, the objectors can be persuaded to withdraw. It should also be noted that the procedure is considered to be factorial in nature and accordingly no Solicitor's Business Account will be allowed.
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