AW48/08

 

 

THE SHERIFFDOM OF NORTH STRATHCLYDE AT KILMARNOCK

 

 

 

SUMMARY APPLICATION

 

under

 

THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

 

by

 

JM

APPLICANT

in respect of

 

JM Senior

the adult

 

and

 

LM

THIRD PARTY MINUTER

 

 

 

Kilmarnock: 29 May 2009

 

The Sheriff, having considered the application and productions and having heard parties thereon at proof, grants the application and appoints JM to be guardian to JM Senior for an indefinite period from this date in terms of Part 6 of the Adults with Incapacity (Scotland)(Act) 2000 with the following powers:

 

1. Powers relating to personal welfare

(a) to decide where JM Senior should live;

(b) to have access to confidential documents or information relating to JM Senior where he would have access to such documents or information on a personal basis;

(c) to consent or withhold consent to medical treatment.

2. Powers relating to property and financial affairs

(a) to open, close and operate any account containing JM Senior's funds;

(b) to claim and receive on behalf of JM Senior all pensions, benefits, allowances, services, financial contributions, repayments, rebates and the like to which JM Senior may be entitled and to vary or appeal arrangements;

(c) to deal with JM Senior's income tax;

(d) to obtain and pay for any goods or services which are of benefit to JM Senior.

 

And makes no award of expenses due to or by either party and Authorises the Public Guardian to issue a certificate of appointment.

 

(sgd) E T McFarlane
Note

 

Background

 

 

On 8 September 2008, an application was lodged on behalf of the Applicant seeking appointment as guardian to JM Senior (hereafter "the Adult"). The application was made in terms of Section 57 of the Adults with Incapacity (Scotland) Act 2000 and sought sole powers relating to the personal welfare, property and financial affairs of JM Senior. The Applicant is the youngest son of the Adult's five children. The application was accompanied by two medical reports and a report on Form AWI(2) in compliance with Section 57(3)(a) and (c) of the Act. On 12 September 2008, I granted a warrant to intimate the application to the Adult, to all known relatives, to the primary carer, to the Office of the Public Guardian and to the Mental Welfare Commission for Scotland.

 

At the first hearing, I was advised that there had been difficulties with intimation on three of the Adult's children. I was also advised that the Minuter who is one of the Adult's children, had indicated in a letter to the Sheriff Clerk that she had some concerns about the Applicant being appointed as guardian, although her only concern appeared to relate to the welfare power being sought at crave 1(c), namely the power to consent or withhold consent to medical treatment. The Minuter indicated in her letter to the Sheriff Clerk that such a decision should be a family decision, reached by all members of the family and should not be left to one of the children particularly as this could involve turning off life support machinery, or consenting to treatment which may or may not prolong the life of the Adult.

 

At a hearing on 5 December 2008, the Minuter formally lodged a Minute and asked for warrant to intimate the said Minute on the relevant parties. The Minute sought to have the Minuter appointed as welfare guardian to the Adult. The Minuter did not seek any powers relating to the Adult's property or financial affairs. The powers sought by the Minuter were different from those sought by the Applicant.

 

Given the terms of the Minute and the apparent conflict between the Applicant and the Minuter, I appointed a Safeguarder to the Adult, Miss Alison Kelly, at the hearing on 5 December 2008. I should add at this point, that the Adult's other three children had by then received intimation of the Application and two of them had indicated by way of letter that they supported the Applicant in his appointment as guardian to the Adult. The letters also indicated that they did not support the Minuter in her application to be appointed guardian in any shape or form.

 

There were three further hearings in the matter and ultimately a proof was assigned for 10 March 2009, with a pre-proof hearing on 10 February 2009. In the meantime, I requested a report from the mental health officer regarding the suitability of the Minuter. I had anticipated that the same mental health officer who had prepared the report in relation to the Applicant would carry out the report in relation to the Minuter. However, for reasons which I have found difficult to establish, a different mental health officer carried out the suitability report in relation to the Minuter. I have to say that I thought it was unfortunate that the same mental health officer who prepared the suitability report in respect of the Applicant did not carry out the suitability report in respect of the Minuter. I was advised during the course of the proof by the two mental health officers who gave evidence, that they perceived a conflict of interest and did not consider it appropriate for the same mental health officer to carry out the two suitability reports. Neither myself, nor Miss Kelly, the Safeguarder, quite understood this position and I think it would have been preferable if the same mental health officer had prepared both reports.

 

I heard evidence in relation to this matter on 10 March and 27 March 2009. At the outset of the proof on 10 March 2009, I was advised by parties that the medical evidence had been agreed and there was no dispute that the Adult was incapax.

 

 

Evidence

 

I heard evidence in this matter over the course of two days. On behalf of the Applicant, I heard evidence from the Applicant, the Mental Health Officer, Pauline Reed, the Adult's son, RM and the Adult's daughter, MAS. On behalf of the Minuter, I heard evidence from the Minuter, the Mental Health Officer, Elaine Luke, the Minuter's nephew, RS, a friend of the Minuter, JB and the Minuter's daughter, TO.

 

In my view, a great deal of the evidence I heard was irrelevant. However, the relevant factors which were established by way of evidence were:

 

1.            The Adult is incapax. This is supported by the medical reports lodged by the medical practitioners, Pauline Reed, the Mental Health Officer and the family members who gave evidence. The Adult suffers from Korsakoff's syndrome and his incapacity is considered to be lifelong.

 

2.            For whatever reason, there was and is a great deal of acrimony between the Applicant and the Minuter. Indeed, there is a great deal of acrimony between the Minuter and at least two of her other siblings, RM and MAS. It was apparent from the evidence that there is a clear divide between the members of this family with the Minuter alone on one side of the divide. It was obvious that the Applicant and the Minuter are not able to agree the time of day or as one witness put it "the colour of the wallpaper". Both mental health officers agreed that such a conflict between potential joint guardians could cause difficulties and would not be in the best interests of the Adult.

 

3.            The Applicant has devoted a great deal of time and energy in recent years to the Adult. He has been his primary carer since the Adult moved back to Scotland in October 2006, after the Adult lived in the Manchester area for an extended period of time. The Applicant had been a regular visitor to the Adult during the seven year period that the Adult lived in Manchester. The evidence led me to believe that the Applicant and the Adult had a very close relationship and, indeed, the Adult had named the Applicant as his next of kin in all relevant documentation. On the other hand, the Minuter has had very limited contact with the Adult for some years. The Adult did reside with the Minuter for a short period of time in the early part of 2006 after he returned from Manchester. It was during that period of time that the Minuter, concerned about the Adult's health, sought social work assistance and the Adult was admitted to Lambhill Court Nursing Home in Glasgow for assessment. The Adult remained there for a day or two before telephoning the Applicant to come and take him away, which he did.

 

4.            The Applicant lives a matter of minutes away from the care home where the Adult currently resides. He has no dependants. He is a regular visitor to the Adult in the care home and attends to any of the limited financial requirements of the Adult. The Minuter, on the other hand, lives in Glasgow with her 11 year old son. She has had some health difficulties of her own which has impacted on her not being available for the Adult. At the time of the proof, the Minuter indicated that she did not have access to her own transport so was reliant on public transport to make the journey from Glasgow to Stevenston to see the Adult.

 

5.            The Applicant fully understands the duties and functions expected of a guardian including the expectation on him to consult other members of the family in relation to matters concerning the Adult. He indicated that he had done this in the past and would continue to do so. He accepts that there are difficulties between him and the Minuter but this would not stop him from including her in any future discussions regarding the Adult's care. The Minuter on the other hand is adamant that the Applicant is not capable of making decisions on his own in relation to the Adult. However, she did not appear to fully understand what she was asking the court to do and indeed, she stated that she had not realised that she was seeking one of the powers stated in her Minute. It seemed to me that she had not thought through her proposed intervention in this matter and was clearly unable to perceive any difficulty in being appointed as a joint guardian with the Applicant despite the obvious difficulties between them.

 

6.            As far as the Adult's past and present wishes are concerned, I heard that the Applicant has been appointed next-of-kin to deal with the Adult's limited finances including payment of his state benefits. The Applicant's brother, R spoke of the Applicant being the Adult's "blue-eyed boy". He also spoke about the Adult being more than happy for "J to do it". The Applicant's sister, AS said that in her view the Adult would want the Applicant appointed. Pauline Reed, the mental health officer who spoke to the suitability of the Applicant indicated that she had not been able to ascertain the past and present wishes of the Adult due to his cognitive impairment. She did however state in her report and in evidence that the Adult has a very good relationship with the Applicant and talked very fondly of him. Elaine Luke, the mental health officer who had looked at the suitability of the Minuter indicated that when she spoke to the Adult he had stated that he did not want his son (the Applicant) to have all the say and wanted the Minuter to be involved. She accepted that this comment was made whilst the Minuter was present with the Adult.

 

 

The Position of the Applicant

 

The Applicant's position is quite simple. He is asking the Court to appoint him as sole guardian to the Adult. He does not agree that joint guardianship with the Minuter is appropriate or even workable given the relationship between them. He has the support of the other members of his family. He has looked after the needs and interests of the Adult almost singlehandedly for a number of years and he wants to continue doing that by being appointed sole guardian.

 

The Position of the Minuter

 

The Minuter's primary submission is that she should be appointed as joint guardian along with the Applicant, despite the terms of her Minute which seeks to have her appointed as sole guardian. Her secondary submission is that, if the Court considered that joint guardianship was inappropriate then the Court should refuse to appoint the Applicant and appoint the Chief Social Work Officer for North Ayrshire Council instead.

 

The reason why the Minuter lodged her Minute was because she was concerned that the Applicant could not make appropriate decisions as and when required and in particular, medical decisions. The Adult had also indicated to Elaine Luke, the mental health officer that he wanted the Minuter to be involved. The Minuter was concerned that the Applicant would not consult with her if he was appointed sole guardian especially in relation to medical matters. The Minuter's main concern was that the Applicant should not be appointed sole guardian. However, she does not want to be appointed sole guardian.

 

The Position of the Safeguarder

 

Ms. Kelly's submissions are quite clear. The order is required and it is the least restrictive option. As far as the Adult's wishes are concerned, her submission is that the Minuter made much of what Elaine Luke, the mental health officer said about the Adult's wishes during the one meeting she had with the Adult when the Minuter was present. She invited me to find that the Adult's past wishes were evident from his appointment of the Applicant as his next-of-kin and his reliance on the Applicant as his main carer. She also referred to the clear evidence from the family members who gave evidence in support of the Applicant which was to the effect that the Applicant would have been the Adult's choice of guardian.

 

Whilst she accepted that both the Applicant and the Minuter were certified as suitable, her position was that the Applicant should be appointed sole guardian. He has coped on his own for a considerable period of time in looking after the Adult and has taken the main responsibility for his care. He has accepted advice from the professional staff looking after the Adult and he has consulted with others, including the members of the Adult's family. On the other hand, the Minuter's involvement with the Adult has been minimal and she has not shown any commitment to the Adult. There is ongoing multi-disciplinary involvement with the Adult and the Minuter will have access to these professionals and indeed, Ms. Kelly believes that the Adult will keep the Minuter advised of any relevant information about the Adult.

 

The Safeguarder does not accept that joint guardianship is an appropriate option. The level of acrimony between the Applicant and the Minuter makes this option unviable.

 

Decision

 

I have to say at the outset that it was obviously disappointing for all concerned that this matter had to proceed in the way it did and I echo Sheriff Baird's comments in the case of JJA v PPA, 2005 SCLR 350 that consideration should be given as to whether there is a better and less stressful way of dealing with these disputes.

 

That said, I have some concerns about the Minuter's application. First of all, her application is one whereby she seeks appointment as sole guardian and yet her evidence and the submissions on her behalf were quite clearly that she does not seek such appointment. She seeks to be appointed jointly with the Applicant, failing which the Chief Social Worker for North Ayrshire Council should be appointed.

 

I am not persuaded that I am able to appoint the Applicant and Minuter as joint guardians in this case. It seems to me that the terms of Section 62 of the Act are quite clear. S62(1) provides for two situations where an application can be made for joint guardianship and these are:

"(a) by two or more individuals seeking appointment, for their appointment as joint guardians to an adult; or

(b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly with one or more existing guardians."

 

Neither of these criteria applies in this case. The Applicant and Minuter have not made an application to the court to be appointed jointly. On the contrary, the Applicant does not seek or want such an appointment. The Minuter is not seeking to be appointed as an additional guardian to an existing guardian. There is no existing guardian at the moment so the Minuter cannot seek to be appointed as an additional guardian in terms of that sub-section. I do not accept that it is competent for the Minuter to be appointed as joint guardian in terms of section 62.

 

In any event, even if a competent application was before me, it is clear to me from the evidence that such an appointment would not be possible. The Applicant and Minuter could not be appointed jointly as it would be impossible for them to carry out the duties and functions of joint guardians given their acrimonious relationship.

 

I do not accept the Minuter's position that the Chief Social Worker of North Ayshire should be appointed in the event that I do not appoint the Minuter jointly with the Applicant. Frankly, I consider that to be an untenable position in this case. The Applicant is a child of the Adult who clearly has a close and loving relationship with the Adult. He has applied willingly to the court to be appointed guardian and it is apparent from the evidence and information before the court that the he is suitable and well able to fulfil that role. The Applicant has shown that he is aware of the Adult's circumstances and of his needs arising from those circumstances and the Applicant is also fully aware of the functions of a guardian. He is accessible to the Adult and the Adult's primary carer, he has the ability to carry out the functions of guardian, there is no likely conflict of interest between the Applicant and the Adult and his appointment will not give rise to an undue concentration of power over the Adult or have any adverse effects on the interests of the Adult.

 

I am satisfied in terms of Section 59 of the Act that the Applicant should be appointed as sole guardian to the Adult with the powers sought relating to his personal welfare, property and financial affairs. Given that the Adult has no assets in his name, caution is not required. Given the nature of the Adult's incapacity, the appointment will be for an indefinite period.

 

I am satisfied that the order is necessary, that it will benefit the Adult and that it is the least restrictive option. I have taken account of the views of those expressed by family members, the mental health officers and the Adult's primary carer. The wishes of the Adult cannot be ascertained but again, I have taken into account the views expressed by others in their evidence about this issue.

 

Accordingly, I shall grant the application appointing the Applicant as guardian to the Adult with the powers sought. A separate interlocutor will be issued with this Note detailing the precise powers granted.

 

I understand that both the Applicant and the Minuter are legally aided so I make no finding of expenses.