SUMMARY APPLICATION UNDER THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 BY J, SOLICITOR IN RESPECT OF THE ADULT F
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 24
NOTE BY SHERIFF PETER J BRAID
In Summary Application under the Adults with Incapacity (Scotland) Act 2000
by
J, solicitor
Pursuer;
in respect of the adult F
Edinburgh 22 March 2016
The sheriff, having heard the pursuer, refuses to warrant the application.
Introduction
1. This is an application under the Adults with Incapacity (Scotland) Act 2000 (the “2000 Act”) in which the pursuer, a solicitor, is seeking the appointment of a financial guardian to F, an 87 year old adult (the “Adult”).
2. The issue which has arisen is whether the pursuer has a sufficient interest to entitle her to bring the application.
The pursuer’s averments
3. The pursuer claims that she has an interest in the property and financial affairs of F by virtue of the fact that she acted as F’s solicitor for approximately a year before F lost capacity. More particularly, she avers (in statement of fact 1) that she “…is the Adult’s solicitor and has an interest in the Adult’s property and financial affairs”. There then follow averments of incapacity, which is said to have arisen in July 2015 when the Adult suffered a significant stroke. The Adult is said to have transferred to her present nursing home in September 2015, although no welfare powers are sought and the authority by which she remains there is unclear. In statement of fact 8 it is averred that the Adult did not accept at interview for the purposes of the Form AWI[8] that she was incapable of looking after her money, though she was “amenable to the idea of receiving help from relevant professionals despite not recognising the name of the [proposed guardian and substitute guardian].” There then follow these averments in statement of fact 9:-
“The pursuer is the Adult’s solicitor, and has been since June 2014. The pursuer established a close relationship with the Adult in acting for her. She is familiar with the Adult’s financial circumstances and believes that the [proposed guardian and substitute guardian] are persons suitable for appointment as her financial guardian. The pursuer claims to have an interest in the property and financial affairs of the Adult as a result of the information that the Adult divulged to the pursuer about her finances. The Adult entrusted the pursuer with a great deal of information regarding her financial situation. The Adult did not discuss such matters with anyone else. The Adult also sought advice from the pursuer on her finances. There is nobody else who claims to have an interest in the Adult’s financial affairs. The relationship between the pursuer and the Adult is not the standard Client-Solicitor relationship as the pursuer and Adult met on numerous occasions and the nature of the meetings was more personal. The pursuer feels morally obliged to make this application in light of her relationship with the Adult and by the fact that nobody else is able to claim an interest in her affairs.”
I pause there to interject that it is not in fact the case that nobody else has, or is able to claim, an interest in the Adult’s property and financial affairs, since the Adult has a brother. However, it is true that he is not interested in bringing an application. The pursuer’s averments then continue, in statements of fact 10 and 11, as follows:
“10. The pursuer avers that her making the application is in line with the overarching principles of section 1 of the Act. It is in the Adult’s best interests as the pursuer has been able to prioritise the application which the Local Authority would not have been able to do; and it is in line with the Adult’s wishes as the pursuer is the person the Adult chose as her solicitor.
11. The pursuer avers the Local Authority, being the City of Edinburgh Council, are under a duty according to section 57(2) to apply for guardianship only where nobody else is willing to make the application. The pursuer being willing to make the application there is therefore no duty on the Local Authority to do so.”
The 2000 Act
4. Section 57 of the 2000 Act is in the following terms:
“57 (1) An application may be made under this section by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult…
(2) Where it appears to the local authority that –
(a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and
(b) no application has been made or is likely to be made for an order under this section; and
(c) a guardianship order is necessary for the protection of the property, financial affairs or personal welfare of the adult,
they shall apply under this section for an order.”
5. Section 87(1) of the Act provides: -…
“’person claiming an interest’ includes the local authority, the Mental Welfare Commission and the Public Guardian.”
The pursuer’s submissions
6. As I had concerns as to whether or not the pursuer had averred a sufficient interest to entitle her to make the application, I invited her to address me, which she duly did on 1 March 2016. In essence her submission as to the factual background was along the lines of the averments which are now in the initial writ, to which I have referred above. Having acted for the Adult for about a year prior to her incapacity and formed a strong relationship with her, she now felt a moral obligation to bring the application. She had information about the Adult’s affairs which no-one else had. She had met the Adult on at least five occasions and the Adult had regularly called her. There was no-one else with an interest who was willing to bring the application. As regards authorities, the only textbook referred to was Ward, Adult Incapacity (1st Edition) at pages 23 and 24, where the author, after referring to a solicitor’s general duty to society and to serve the interests of justice, goes on to state: “In some cases, the solicitor may be able only to advise and suggest; but should not neglect to do so. In others, the solicitor may well be ‘a person claiming an interest’ or even ‘a person having an interest’.” At paragraph 14-59 the author goes on to discuss what is meant by “persons having an interest”, in the course of which he states that that group of persons is narrower than those having an interest. The pursuer contended that whether or not she had an interest, she was a person claiming an interest. At the conclusion of the hearing, I invited her to submit an amended application incorporating averments about the interest she claimed to have (following the lines of her submission), which she has now done, and I indicated that I would issue a written decision thereafter.
Discussion
7. The starting point in any discussion of interest must be the fundamental principle that any party bringing an action must assert both title and interest, interest being defined in Macphail, Sheriff Court Practice (3rd edition) at paragraph 4.29 as “some benefit from asserting the right with which the action is concerned”. Macphail goes on to state, at paragraph 4.33, that interest need not be pecuniary or patrimonial, but it may be the interest in any right recognised by law. It may be small or contingent, but must not be remote, and it is for the court to decide whether a sufficient interest has been shown. Accordingly, by permitting an action to be brought by any person claiming an interest, the 2000 Act in a sense is doing no more than re-stating that fundamental principle (and perhaps making clear, also, that title need not be shown separately).
8. The term “person claiming an interest” is not exclusive to the 2000 Act. It also makes an appearance, for example, in section 11(3)(a)(i) of the Children (Scotland) Act 1995, which allows any person claiming an interest to seek a section 11 order; and, before that, in section 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986, which allowed any person claiming an interest to apply to the court for an order claiming parental rights.
9. So far as I can tell, the 2000 Act is the first piece of legislation to draw a distinction between persons “claiming” and “having” an interest, and I concede that does on the face of it lead to an inference that the former class of persons is wider than the latter; and that the category of persons claiming an interest is indeed a wide one.
10. That said, it would appear that in relation to the two statutes referred to in paragraph 8, the term “person claiming an interest” has been treated as meaning that the interest claimed must be an interest which is such as to qualify him or her to bring the action – in other words, the very sort of interest described at paragraph 34 of Macphail, supra. In relation to children, a liberal approach has been taken – see, for example, the discussion in Wilkinson and Norrie, The Law Relating to Parent and Child (3rd edition) at paragraph 8.34 – but nonetheless there has invariably been some discernible interest which has entitled the pursuer to bring the action. Any distinction between persons claiming, and having, an interest may therefore be more apparent than real.
11. Two things flow from the foregoing discussion. First, the term “person claiming an interest”, where it appears in the 2000 Act, in order to have some content, must mean more than simply a bald assertion that the pursuer has an interest. Were that not so, then literally any person could bring an action in relation to any adult, which cannot be correct (and would render the interpretation provision in section 87, quoted above, pointless). Second, as I have already pointed out, there may be no practical distinction between persons “claiming” and “having” an interest; or, to put that another way, the interest claimed must be an interest which if proved would be an interest such as to qualify the pursuer to bring the application, in other words, a real interest.
12. In the present case, the pursuer avers that she has an interest but for the reasons stated, she must aver more than that. She must claim an interest which is a real interest. I am prepared to concede that the averments of having formed a close relationship with the Adult (albeit only in the course of the year before the Adult became incapable), and the averments of moral duty to bring the application might have entitled the pursuer to claim an interest in the personal welfare of the Adult, having regard to the duty of a solicitor to society and bearing in mind that interest need not, in all contexts, be patrimonial in nature.
13. However, in my view, “interest” in relation to the property and financial affairs of an adult must denote some form of patrimonial interest. In this regard, the interest which the pursuer claims is that as the Adult’s solicitor she has an interest in her affairs, but the reality is that she has no real interest in those affairs. She is neither a potential beneficiary, nor an attorney, nor does she hold any of the Adult’s property. I do not consider that simply acting as the solicitor of an adult, in the circumstances of this case, is a sufficient interest such as to entitle the pursuer to bring an application for the appointment of a financial guardian. Further I do not consider that the pursuer’s averments of a special relationship are sufficient. She has not acted for the Adult for a significant length of time, having regard to the Adult’s age and stage in life. The number of meetings is not particularly large. Equally, I do not consider that the holding of information is a sufficient interest.
14. It follows that the interest claimed by the pursuer is not in my view a sufficient interest such as to entitle her to bring this application, and that the pursuer is not, in terms of the 2000 Act, a person claiming an interest. I have therefore refused to warrant the application. In reaching this view I do not consider that I am disagreeing with the view expressed at pages 22 and 23 of Ward, Adult Incapacity, where the author merely expresses the opinion that in some cases a solicitor may be a person who can claim an interest. That may well be so; but this is not such a case.
15. Two further comments fall to be made. First, the Adult is not left high and dry, as it were, by this decision since the local authority has the power, indeed, the duty, to bring an application. I do not accept that their ability, or otherwise, to prioritise the application is a relevant factor. It should not take the local authority any longer than it would take a solicitor in private practice to obtain the requisite reports and, if they are unable themselves to present the application speedily, it is always open to them to instruct external solicitors.
16. Second, I have not made mention of this so far, since it is not relevant to the question of interest, but the application seeks the appointment of partners in the firm by which the pursuer is employed, as guardian and substitute guardian. In that situation, even if the pursuer had an interest, there would then be a clear conflict of interest between her interest in the pursuer’s affairs and her firm’s interests. I do not imply any impropriety whatsoever in the pursuer’s actings, but it seems to me inherently undesirable that the court should be encouraging actions by firms of solicitors, or partners/employees thereof seeking the appointment of someone within that firm, since there is clearly the potential for conflict and abuse. In the present case, that is perhaps highlighted by the fact that the Adult had instructed the pursuer for only a year, having previously instructed other solicitors, and it cannot be said (and is not averred) that the appointment would be in accordance with her previously expressed wishes. It follows that even had I been persuaded that the pursuer was a person who claimed an interest, I would not have been prepared to appoint the proposed guardian and substitute guardian.
[See Sheriff Principal Stephen's Note re Summary Application under AWI(S) Act 2000, 1 August 2016, [2016] SC EDIN 66, relating to this case.]