A recent sheriff court case has highlighted problems and uncertainties over the legislation covering the renewal of transitional guardianships to incapable adults

Renewing so-called “transitional guardianships” is not particularly straightforward. Not only does the practitioner have to wrestle with whether to use the prescribed minute procedure for renewal (Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, rule 3.16.8), when the original process may be languishing in the depths of the Court of Session, there are strict time limits to contend with as well as those issues which crop up in relation to all renewals.

For example, rule 3.16.8(5), on one reading, seems to provide that applications for renewal need only be served on the local authority and the Mental Welfare Commission and not the adult, let alone the primary carer or nearest relative. This would not only be contrary to the spirit of the Adults with Incapacity (Scotland) Act 2000, but also to human rights legislation.

None of these difficulties, however, compares to the problem outlined by Sheriff Baird in a recent judgment,

G’s Guardian (Glasgow Sheriff Court, 11 September 2009; available on the Scottish Courts website). The sheriff suggests that the legislation does not properly provide for renewal of transitional guardianships.

For the majority of transitional guardians, their powers lapsed on 5 October 2009. The general understanding was that, so long as an application for renewal was lodged prior to that date, the powers continue until the renewal application is disposed of by the sheriff (2000 Act, s 60(1)). Indeed, it is likely that at the time of writing a number of applications have been lodged but, as yet, not determined. Sheriff Baird suggests that the simple act of lodging the application prior to that date may not be sufficient and that, in order to protect the transitional guardian’s powers, these powers should be granted ad interim.

Transitional guardianships

The 2000 Act introduced the now familiar offices of financial and welfare guardian. Following its enactment, it became incompetent to appoint a curator bonis, tutor-dative or tutor-at-law to an adult (s 80; it is, however, still competent to appoint a curator bonis to a child). Further, the provisions of the Mental Health (Scotland) Act 1984 regarding guardianship were repealed.

These now obsolete offices were converted into guardianships by sched 4 to the 2000 Act, hence the term “transitional guardianships”. Any person who held one of these offices at the “relevant date”, 1 April 2002, automatically became a guardian (a curator bonis to a child becomes a guardian automatically on the child’s 16th birthday). Following this date, all transitional guardians should have received a certificate of appointment.

Renewal – the statutory position

Often persons were appointed to one of the now obsolete offices for an indefinite period. Originally, the 2000 Act did not provide for renewal of these indefinite appointments. It seems that this was an oversight; the Adult Support and Protection (Scotland) Act 2007 amended the 2000 Act by making all transitional guardianships subject to the renewal procedure, regardless of whether or not they were granted for an indefinite period.

The 2007 Act amended para 6 of sched 4 to the 2000 Act. Now, with a few exceptions, all transitional guardians had to apply for renewal by 5 October 2009. If an application for renewal is not made timeously, the transitional guardianship lapses.

Section 60(1) of the 2000 Act deals with the general situation where an application for renewal is lodged but not determined by the date of expiry: “At any time before the end of a period in respect of which a guardianship order has been made or renewed, an application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such application is so made, the order shall continue to have effect until the application is determined.”

This means that where an application is lodged before the expiry date, the order continues to have effect until such time as the application is determined by the sheriff. So far, so good. Unfortunately though, this section may not extend to transitional guardianships.

Problems of wording Sheriff Baird’s recent judgment in the matter of G’s Guardian set out a number of concerns regarding renewal procedure in these circumstances.

The sheriff reminds us that a “guardianship order” is defined in s 58(4) of the 2000 Act as an order following the sheriff’s grant of an “application under section 57”. Transitional guardianships, on the other hand, were created by virtue of sched 4 to the Act and not by a sheriff granting an application under s 57. Herein lies the fundamental difficulty, according to Sheriff Baird.

As he points out, the references to “such order” and “the order” in s 60(1) (read in conjunction with the provisions of sched 4 relating to transitional guardianships) do not make sense (note, para 37). By the inclusion of these words, the meaning cannot extend to transitional guardians who have never had a “guardianship order” granted in their favour.

Paragraph 6(3A) of sched 4 to the 2000 Act, inserted by the 2007 Act, sets out the dates on which transitional guardians “cease to be authorised to act” as an adult’s guardian, as follows:

  • (a) “where the person does not apply for renewal of guardianship within the 2 year period… on the expiry of that period;
  • (b) where (i) the person applies
  • for such a renewal within that period; and (ii) the sheriff refuses that application, on the date of refusal;
  • (c) where (i) the person applies for such a renewal within that period; and (ii) the sheriff grants the application, in accordance with the provisions of this Act”.

Sheriff Baird not only deems the grammatical construction of this provision “execrable” (para 40), he suggests that part (c) “at first blush… offends against common sense” (para 41). It certainly does seem an oddly worded provision. It is unclear what part (c) actually means. Presumably the intention is that the transitional guardianship lapses on the grant of the renewal application: an “order” is granted in accordance with the 2000 Act and so new, fresh authority is granted. This does not, however, tie in with the concept of “renewal” and indeed, on a proper construction of that subparagraph, one could be forgiven for coming to the conclusion that transitional guardianships simply cannot be renewed. It seems that the transitional guardian ceases to have authority to act as guardian whether the renewal application is granted or not!

Regardless of this point, it is interesting to note that it seems transitional guardianships expressly continue up until the date of expiry of the two year period, or the date of refusal of the application for renewal (presumably whether or not this occurs before or after the expiry date). Unfortunately though, the situation is not as clear cut in the situation where the application is granted “in accordance with the provisions of this Act”. One can infer that this means the transitional guardianship continues up to the date of granting (even though the grant apparently results in the guardian ceasing to have authority to act), even when that date is after the expiry date. This is, however, simply inference.

Sheriff Baird suggests that a practical solution to these issues is for sheriffs to use their discretionary power under s 3(1) of the 2000 Act and grant powers ad interim rather than rely on the wording of the provisions discussed above. This way, sheriffs can ensure everyone involved is adequately protected.

Current situation

We are now several weeks past 5 October and so a large number of these transitional guardianships will have been through the renewal procedure, whether correctly or not, or will have automatically lapsed. Indeed, the writer has had at least one successful “renewal” application granted in respect of a transitional guardianship.

Of course, it is not beyond the realms of possibility that a number of applications in respect of transitional guardianships have been lodged prior to 5 October but have yet to be determined. At the time of writing, one sheriff clerk has confirmed that five applications were lodged immediately prior to 5 October. No interim powers were granted and all five applications have yet to be determined. If Sheriff Baird’s reasoning is correct, the transitional guardianship powers may have lapsed, despite the timeous lodging of the renewal application.

There may be a large number of applications in this position. Even setting these aside, there may remain a number of curator bonis cases where a child has not yet attained the age of 16.

Parliament clearly did not intend this rather unfortunate situation to occur. Sheriff Baird acknowledges (at para 51) that his suggestion of granting powers ad interim may be strictly unnecessary and that perhaps the problem he has identified either does not truly exist, or does exist but is answered somewhere he has been unable to find. The present writer has also been unable to find a conclusive answer to this problem.

It is suggested that those practitioners who have an application for renewal of a transitional guardianship lodged (prior to its expiry date) but undetermined (following the expiry date) consider enrolling a motion for the granting of the powers ad interim, if final disposal of the application is not imminent. This will have the effect of ensuring everyone, from the adult to the guardian to the practitioner, is not exposed to a subsequent challenge from the date of the granting of the interim powers to the date of disposal of the application. This may be a belt and braces approach, but it is surely always better to err on the side of caution.

Finally, if it is the case that the powers lapsed on the expiry date, then it is arguably incorrect to request the “renewal” of the powers in question; the powers may have to be granted anew under s 57 of the 2000 Act. In this scenario, further reports may be required, as applications under s 57 require more reports than applications under the simplified renewal procedure. Of course, any application for interim powers made after the expiry date may also require further reports. Fortunately, though, the discretionary power under s 3(1) allows the sheriff to “make such consequential or ancillary order, provision or direction as he considers appropriate”. It is open to sheriffs, then, to consider each application and determine whether or not to utilise this discretionary power by, for example, granting interim powers based on a renewal application where the original powers may have lapsed.

Kerry Trewern is a professional support lawyer at Morton Fraser LLP 

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