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Clarification Provided on Appointment of Guardians

Clarification provided on Appointment of Guardians

The decision of the Second Division of the Inner House of the Court of Session in Aberdeen Council Applicant and Respondent V JM Respondent and Appellant [2017] CSIH 65 provides further clarification on the appointment of guardians.

The case concerned what procedure would apply in a situation where the application of a local authority is not disputed in respect of a guardianship order being deemed necessary, but the individual who should be appointed as guardian is in dispute. This resulted in two procedural points being affirmed by the Inner House. First, an additional Minute is not required to be lodged and the report lodging requirements do not apply.

Previously, in instances where there were competing guardianship applications, a competing Minute would be required by the court in the same process. This is now, no longer necessary. The Inner House determined that a competing claim for the appointment of guardianship is recognised as a counter proposal. The counter proposal is not deemed to be separate from the original application it is responding to. Following this, it is also not seen to be a “subsequent application” to the original appointment application. The reasoning for this is because the counter proposal for the appointment of a different guardian occurs whilst the application for the appointment is still active and the “sheriff is still considering the application”.

The case established that an individual seeking a competing claim to the appointment of guardian, is not required to obtain a Mental Health Officer report commenting on their suitability as a guardian alongside their claim. It was found that the absence of such reports would not prevent the sheriff appointing such a person provided they were “suitable and consented”. However, even although the counter proposal does not require to be supported by a MHO suitability report, the sheriff still requires to be satisfied that the proposed is a suitable guardian. Therefore, with the powers under s.3 of the Adults with Incapacity (Scotland) Act 2000, the sheriff is entitled to, along with a range of other reports, request an MHO report on the suitability of the applicant.

An individual who intends to request appointment of guardianship over another applicant, is no longer required to initiate a separate Minute into the process. Practice now requires that Answers to the Minute including a counterclaim be lodged in the process. Whilst there is no requirement for a MHO report to be obtained by the individual, they may still be subject to such a report at the discretion of the sheriff. Ultimately, this decision simplifies the initiating steps required for an individual to propose an alternative appointment as guardian.

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