The Lapsley case II

A short and worrying
guide to the law

Ewan Kennedy

I can offer some general comments about The Adults with Incapacity (Scotland) Act on the basis of about 40 years in private practice as a solicitor dealing mainly with private individuals, from which I am now happily retired.
     The act was passed mainly in order to put an end to a perceived injustice whereby elderly people were being deprived of their property against their wishes, or where they had totally or partially lost their capacity. Typically a family member would obtain a form of power of attorney from a stationers, have their elderly relative sign it and then uplift the money in her bank or sell her house. I don't think there were statistics about this, but clearly the practice went on. As the holder of a power of attorney did not need to register anywhere, his actings were basically unsupervised.
     In future a power of attorney would need to contain a certificate by a lawyer confirming that advice about its contents had been given and that the granter appeared to be of sound mind. The document would then be registered with a new bureaucrat, the public guardian. She and her staff of auditors and investigators were duly recruited and established in a fine office in Falkirk.
    
While the impetus for the act was to protect financial rights it also introduced a new regime for handling welfare issues where it was suspected a person had lost mental capacity. There were new rules about guardianship, replacing a rather complicated system that had prevailed before. A guardian could be a family member or a professional person such as a solicitor or accountant. The guardian would be registered with and audited by the public guardian.
     While all of this was brought in with the best of intentions I believe that there have been some substantial problems in practice. For two main reasons it seems that guardianship cases have multiplied out of all proportion to what the Scottish Parliament intended.
     First, local authorities took their responsibilities about guardianship very seriously. Social workers were sent on courses about it and, I suspect, encouraged to make sure that in appropriate cases the authority took steps to appoint a guardian.
     For example an elderly client of mine who had lived alone successfully for many years and valued her independence became, unknown to her family, rather demented and eventually was found wandering on a busy road near her house. She was uplifted by the police and taken to a hospital for assessment. By the time her closest relatives became aware of what had happened steps were already under way for the local authority to appoint its nominee as her welfare guardian. I attended the case conference with some family members, who expressed their wish for one of their number to be appointed, but the authority persisted and duly prevailed. It proved impossible to persuade the sheriff in that case that it was kinder for my client to be looked after by a guardian she knew rather than a stranger.
     Had this lady granted a power of attorney dealing with welfare as well as financial matters this would have prevailed over the guardianship application. Like most of the population, it had never occurred to her that she should do this. I suspect that before the act came in the local authority would have been delighted to let her family organise her care.
     Second there was a ruling by the sheriff court that where a person had lost his mental capacity it would infringe his human rights for him to have his place of residence changed, for example by being placed in care. The ruling was no doubt perfectly correct in law, but it was described to me by a psychiatrist as one of the biggest obstacles in administering geriatric care.
     An application to appoint a guardian requires to be supported by various medical certificates, dated within strict time limits. There follows a court procedure which may be protracted if court time is not available or the sheriff finds fault with any documentation. Where financial powers as well as welfare are involved the guardian must find an insurance guarantee, or bond of caution. The insurance company can take so long to issue this that time scales set by the court are not met.
     All of this can delay the admission of a person into much needed care by many weeks or even months. In a horrific case, dealt with by a colleague of mine, an elderly man was taken into hospital after a fall in which he broke his hip. After he recovered he was considered to be mentally incapable of living on his own, but the same incapacity meant that he could not give consent to being admitted to residential care. Thus he became a bed-blocker for several weeks while my colleague did his best to fast track a guardianship application.
     I have mentioned that the guardian must obtain a bond of caution. In my time in practice insurance companies would not accept proposals from persons who were not professionally qualified, which meant that the family solicitor or an accountant had to be appointed (unless the sheriff had been persuaded to dispense with caution). This is ridiculous, because the professional person will already be insured through his firm's policy, so the insurance company has no risk and the premium of a percentage of the ward's assets each year is a windfall to it. The public guardian's website discloses that steps are being taken to simplify and speed up applications for caution.
    
Guardians are very strictly audited by the public guardian. They must submit annual accounts with supporting vouchers and ensure that all money is earning interest. This causes severe stress to lay guardians already burdened with the unpaid task of supporting their relative. The fees charged by a professional guardian are a further charge on the estate.
     By contrast persons acting under a power of attorney do not require to submit accounts and will not be bothered by the public guardian unless she is asked to intervene. It would be useful to know in how many cases power of attorney issues have been raised with her and the action taken.
     It seems to me that the act overprotects persons subject to guardianship and probably fails those who have appointed an attorney. It has added to bureaucracy, created unnecessary work in local authorities and added to the burdens within geriatric units of hospitals. I shall be interested to know if solicitors and others presently working in the field agree with this analysis.

Ewan Kennedy is a retired solictor