17. Miscellaneous
(a) Payments to Spouse :
Once the financial needs of the Ward have been met the balance of the revenue will be available to aliment the other party to the marriage. Where, however, the Ward is moved into a private nursing home and the total income of the Ward is required to meet the nursing home charges this may result in his/her spouse being deprived of the income which they had previously been receiving for their maintenance. In that situation a Curator could make an application to the Court for special powers to encroach on the Ward's capital to aliment the Ward's spouse or the spouse could herself apply to the Court for payments of Aliment out of capital.
(b) Payments to Children .
There is a duty to aliment children under l8 or over l8 and under 25 where undergoing instruction at an educational establishment or, training for employment or a trade, profession or vocation. Such payments fall to be met from free revenue (income) and usually require to be set by an expert, by agreement, or failing such, agreement, by application to the Court.
Where a Ward is entitled to inherit the estate of a deceased person and is also (1) nominated Executor in a Will; or (2) if capax would be entitled to be appointed Executor Dative, the Curator should in (1) above enter into the duties of Executor on behalf of the Ward; and in (2) be appointed Executor Dative qua Curator in respect of the Ward. In respect that his/her appointment as Executor stems from his/her appointment as Curator, his/her intromissions with the Executry estate come under the Accountant's supervision and the Accountant will require to audit the Executry accounts. Where the Curator is a Solicitor, the Accountant will require to include in the Commission fixed at the audit of the Curator's annual Account a fee to cover all Executry work including legal work. Where the Curator is not a Solicitor, the law agents will be entitled to charge an account for all work up to the obtaining of Confirmation. The legal account should be fully detailed and submitted to the Accountant who will decide whether it requires to be taxed.
C. Joint Bank Accounts and Holdings
A Curator has a duty to ingather and place in his/her own name as Curator the Ward's estate. Where there are joint holdings they must be disentangled and the Ward's share transferred to the Curator's control. Where joint bank accounts are concerned this process should be effected in such a manner that it does not deprive the joint owner of the use of his/her own funds. In this respect it may be noted that in law the funds in a joint bank account belong to the person who contributed them but where funds are intermixed, the Accountant will in most circumstances accept a 50/50 split.
All commissions and brokerage received by a Curator or agents acting on his/her behalf fall to be credited to the Ward's estate 1. Such commission would include commission paid to law agents by building societies, commission on insurance premiums and brokerage on stock exchange transactions.
E. Factor appointed in terms of Children (Scotland) Act 1995
Following upon an action of damages in the Court of Session or the Sheriff Court, a sum may be awarded to a person of non age or a sum of damages may be negotiated on behalf of a person of non age and subsequently given effect to by the Court approving a Joint Minute between the parties and a Factor appointed in terms of Section 13 of the Children (Scotland) Act 1995. Such appointments proceed in a similar manner to a normal Curatory.
Similarly, where a Judicial Factors is appopinted by the Court after application by the Accountant in terms of Section 9 of the 1995, administration of the estate proceeds in the same manner as a Curatory.
In normal course the Accountant's prior approval is not required to the purchase of essential clothing etc for the Ward except where the Curator considers the demands of those looking after the Ward to be excessive. The Accountant's approval should, however, be obtained to the periodic payments from the Ward's estate and to extraordinary expenditure or to expenditure which is likely to result in encroachment on capital. In particular major repairs to heritable property always require the Accountant's approval.
A Curator is obliged to ensure that the Ward's heritable property and valuable personal property is adequately insured.
The Staff of the Accountant of Court are available to provide advice and assistance in any case. In particular, if a Curator is in any doubt over how to proceed in any matter it would be worthwhile discussing the matter with one of the Case Officers. It is particularly helpful to the Accountant if telephone queries which are to be acted upon are confirmed in writing.
1 A B & C D Cases 1927 S C p 902
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