The Edinburgh Sheriff Court issued a judgment on 22nd March 2016 in this case ((2016) SC Edin 24)). It involved an application under the Adults with Incapacity (Scotland) Act 2000 by a solicitor seeking the appointment of a financial guardian for F, an 87 year old adult. The pursuer claimed that she had an interest in the property and financial affairs of F by virtue of the fact that she had acted as F’s solicitor for approximately a year before F lost capacity thus entitling her to apply for the guardianship (under section 57(1) of the 2000 Act).
Section 57(1) of the 2000 Act permits an application for guardianship to be made by “…by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult…”
It appears from the judgment that this was interpreted by the sheriff as the pursuer “claiming to have an interest” which in his view meant that the pursuer would have to successfully assert that she had both title and interest to be granted guardianship2 and to do so would mean she would have had to demonstrate a patrimonial interest3. On this basis, the sheriff determined that the pursuer did not have a sufficient interest entitling her to bring the application, and that the pursuer was not therefore a person claiming an interest.
The sheriff’s interpretation is interesting given that the 2000 Act makes a distinction between ‘claiming an interest’ and ‘having an interest’. The 2000 Act requires only that “the pursuer claims an interest” and was designed to allow solicitors in certain situations to go beyond their duty to advise and suggest in the event of an adult’s incapacity and actually apply for guardianship4 as a protective measure for the adult5.
Clearly this judgment raises some important legal and practice related issues and accompanying confusion. It is understood that the decision is to be appealed and the outcome will be eagerly awaited for any authoritative guidance it provides.