A solicitor who acted for an elderly woman for about a year before she lost capacity did not have sufficient interest under the Adults with Incapacity (Scotland) Act 2000 to bring an application for appointment of a financial guardian to the woman, a sheriff has ruled.

Sheriff Peter Braid at Edinburgh Sheriff Court refused the application by the solicitor, referred to as J, for appointment of a financial guardian to the woman, F, who was aged 87 and now resided in a nursing home.

In her application J stated that she had established a close relationship with F in acting for her. She was familiar with F's financial circumstances, and claimed to have an interest in F's property and financial affairs as a result of the information that F had divulged to her and entrusted her with. F did not discuss such matters with anyone else. There was nobody else who claimed to have an interest in F's financial affairs. The relationship between J and F was not the standard solicitor-client relationship but something more personal. J felt morally obliged to make the application in light of her relationship with F and by the fact that nobody else was able to claim an interest in her affairs. (In fact F had a brother but he was not interested in making any similar application.)

The sheriff said he was "prepared to concede" that J's averments "might" have entitled her to claim an interest in F's 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".

However, in his view, “interest” in relation to the property and financial affairs of an adult "must denote some form of patrimonial interest". In reality, J had no real interest in F's affairs. She was neither a potential beneficiary, nor an attorney, nor did she hold any of F'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", he stated. "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."

He added that F was not left "high and dry" by his decision since the local authority had the power and indeed the duty to bring an application in that situation. Further, in seeking the appointment of partners in her firm as guardian and substitute guardian, "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", the sheriff concluded.

Click here to view the judgment.