[2016] SC EDIN 66




in summary application under the Adults with Incapacity (Scotland) Act 2000




J, Solicitor




In respect of the Adult F.F.





EDINBURGH, 1 August 2016

[1]        This is a summary application under the Adults with Incapacity (Scotland) Act 2000 (the "2000 Act").  The pursuer J is a solicitor who seeks the appointment of a financial guardian to F.F., the adult.  The adult is said to be 87 and suffering from cognitive impairment as a result of a stroke.  She currently resides in a residential care home.

[2]        In the statement of facts the pursuer is described as the adult's solicitor "and has an interest in the adult's property and financial affairs".

[3]        The application seeks the appointment of a guardian and substitute guardian who are solicitors in the same firm as the applicant.

[4]        The application was presented to the sheriff to consider whether to grant warrant.  The sheriff had concerns as to whether or not the pursuer had averred a sufficient interest to entitle her to make the application.  The applicant made submissions to the sheriff in support of her title and interest to bring the application.  These are set out in the sheriff's note of 22 March 2016[1].

[5]        Section 57(1) of the 2000 Act allows an application to be made "by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult…".

[6]        The sheriff having considered the submissions refused to warrant the application for the reasons stated fully in his note.  The sheriff took the view that the interest which the pursuer claims was that of the adult's solicitor.  However, the sheriff concluded that as such she had no real interest in the financial affairs of the adult.  She did not hold a power of attorney and indeed as recently confirmed the adult did not wish to grant a power of attorney which was a matter known to the applicant.

[7]        The applicant has lodged a document "Grounds for challenging the refusal to warrant the application in summary application under the Adults with Incapacity (Scotland) Act 2000" which seeks to bring under review the sheriff's decision as explained in his Note of 22 March 2016.  It sets out in eight numbered paragraphs grounds suggesting that the sheriff erred in not warranting the application.

[8]        The applicant states that "The purpose of the review is that the applicant requests that the Sheriff Principal issues an administrative direction to the sheriff clerk for a warrant to be signed in this case to commence proceedings".

[9]        The applicant submits that in terms of section 27 of the Courts Reform (Scotland) Act 2014 the Sheriff Principal has power to give the sheriff clerk a direction of an administrative character such as to sign a warrant to commence proceedings.  It appears that reliance is placed on Fitzpatrick v Advocate General for Scotland 2004 SLT (Sh Ct) 93.

[10]      The most recent report (AWI [8]) required in terms of section 57(3)(c) of the 2000 Act has been prepared by Stewart Dunbar, Solicitor and is dated 23 June 2016.  It proceeds on the basis that the local authority, City of Edinburgh Council, are the applicants and addresses the matters raised in section 57(3)(b)(i) and (ii) namely the appropriateness of the order sought based on interviews with the adult in January and June of this year and the suitability of the proposed guardian and substitute guardian.  That report is referred to for its terms.  Although the adult did not accept that she was incapable of looking after her money the report concludes that there was no alternative to financial guardianship and that the order sought is the least restrictive and most appropriate option.  The reporter was likewise satisfied that both the proposed guardian and proposed substitute guardian have the ability to carry out the functions of guardian with property and financial powers.  I narrate these conclusions as background information as these issues did not require to be addressed by the sheriff in determining whether the applicant was a person "claiming an interest" in the property or financial affairs of the adult.  The report mentions that the adult's former social work care manager referred to the appellant revoking a power of attorney in 2014 with no further power of attorney put in place.  The applicant confirms the adult's unwillingness to sign a further power of attorney.

[11]      I now turn to consider the character of the document "grounds for challenging the refusal by the sheriff to warrant the application".  The eight grounds stated suggest that the sheriff erred in law.  In effect these grounds seek to bring under review or appeal the sheriff's decision.  In Fitzpatrick (supra) the Sheriff Principal held that an appeal challenging the sheriff's refusal to grant a warrant to cite is incompetent.  Fitzpatrick remains good law following, as it did, the decision in Davidson v Davidson (1891) 18R 84 an Inner House authority confirming that proposition.  Accordingly, the challenge or the review sought of the sheriff's decision, being in essence an appeal, is not competent.  There being no action in dependence there can be no appeal.

[12]      Nevertheless, the outcome of the sheriff's decision in Fitzpatrick (supra) was an administrative instruction by the Sheriff Principal to the sheriff clerk to sign a warrant for citation.  That outcome followed the Sheriff Principal's careful consideration of whether the refusal of warrant infringed the pursuer's right of access to justice in terms of Article 6 of the European Convention of Human Rights.  After considering Brown v Stott 2001 SC (PC) 43 and decisions of the European Court of Human Rights the Sheriff Principal took the view that "to deny the pursuer the opportunity to raise his action and deal in due course with such issues of competency as may arise would be, in my opinion, to deny him without sufficient justification his right of access to justice."  Such was the outcome in Fitzpatrick which was an ordinary cause action against the Advocate General for Scotland.

[13]      The current application is, however, quite different.  The object of proceedings by summary application under the 2000 Act has as its sole purpose the appointment of a guardian to meet the needs of an adult with impaired capacity to take decisions in relation to their property or financial affairs.  The sheriff's powers under the Act are wide but the sheriff also must have regard to the section 1 principles.  The 2000 Act provides a statutory code to meet the needs of adults who lack full legal capacity.  Indeed, it can be said that an adult lacking capacity has a right to a suitable and qualified guardian.  Accordingly, this is no ordinary litigation seeking to convene a defender to court instead the object of the application is solely to address the needs of the adult in question and determine the proper form of intervention in the adult's affairs.

[14]      It is therefore necessary to look at the question whether the sheriff's decision to refuse warrant impedes or frustrates those objectives.  The local authority has specific duties and responsibilities in terms of the 2000 Act.  In terms of section 87(1) “a person claiming an interest" includes the local authority, the mental welfare commission and the public guardian.  In terms of section 57(2):-

"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."


[15]      The local authority therefore come under a duty to apply for an order in these circumstances.  There is, accordingly, no denial of the adult's needs or right to a guardian as the local authority must step in and make an application in these circumstances.  The access to justice question which came sharply into focus in Fitzpatrick has no place in these proceedings.  It follows that the argument in favour of administrative intervention falls away.

[16]      The suitability of the proposed guardian and substitute guardian are, as the sheriff observes in paragraph 16 of his note, questions or issues which are not relevant to the question of interest.  The question of who may be appointed as guardian is a question for the sheriff to address once proceedings are commenced in terms of section 59 of the 2000 Act.  The report (AWI[8]) to which I have referred must include the reporter's opinion as to the suitability of the individual nominated in any application for appointment of a guardian.

[17]      The sheriff's decision with regard to warrant in this case does not preclude an application by a solicitor as a person "claiming an interest in the adult's property and financial affairs".  The sheriff's decision is restricted to the circumstances of this application.  Other applications fall to be determined on their own facts and circumstances.

[18]      The sheriff has referred to Ward on "Adult Incapacity" and the learned author's chapter on professional and practical issues.  There is no dissonance between the views expressed by the sheriff and those of the learned author.  Indeed, it is of interest that the author deals with the solicitor client relationship at pages 26 and 27 (2-12).  In circumstances where the adult is a client it is stated "While there may not be a responsibility to do large amounts of work without prospect of remuneration, there is a clear responsibility to ensure that the client's interests are safeguarded, even if (for example) the solicitor does no more than report the circumstances to the local social work department, by reference to their responsibilities under ss.53(3) and 57(2) of the Incapacity Act '(the 2000 Act)'."

[19]      Having considered the application, the sheriff's note and the grounds for challenging the refusal to warrant the application I take the view that the grounds for challenge are in essence a review or appeal and as such incompetent standing the authorities of Davidson v Davidson and Fitzpatrick (supra).  Further, there being no circumstances which require intervention to protect the needs and interests of the adult standing the duties imposed on the local authority by the 2000 Act I decline to make the administrative direction as contended for by the applicant.



[1] Note by Sheriff P J Braid in Summary Application under the Adults with Incapacity (Scotland) Act 2000 by J, Solicitor in respect of the adult F [2016] SC EDIN 24