Although lockdown restrictions have eased slightly there is still a significant impact which will be felt by us all for the coming weeks and months.

Where someone has been assessed as lacking capacity and has not put in place a power of attorney, an application requires to be made to the Court for a guardian to be appointed where someone requires to have legal authority for decision making in respect of the incapax adult’s health, welfare, finances and/or property. This was brought into effect some 20 years ago by the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act). 

The recent Coronavirus (Scotland) Act 2020  has made changes that affect adults who lack capacity.  They are found in Schedule 3, part 2 of the Act.

So, what impact has Covid had on these applications?

• Reports – when making an application for guardianship three reports are required to accompany the application to the Court. All three reports are based on the date of assessment of the incapax adult. They must be dated within 30 days of each other and the application lodged within this 30 day period.

Impact: Due to social distancing measures it has not been possible for report writers to meet the incapax adults for the purpose of assessment meaning the applications have had to be put on hold until these measures are eased/lifted.  This will result in a significant backlog of applications requiring assessments to be carried out.  When measures are eased this will result in increased demand and likely waiting lists for report writers attending the incapax adult for assessment. In some circumstances, it may be possible for the reports to be completed by remote interview, but this is dependent on the adult’s circumstances and the report writer being satisfied that they have been able to complete their enquiries fully via the remote assessment.

• Renewals – the 2000 Act requires all guardianship renewal applications to be lodged with the Court on or before the renewal date. At the time of the original appointment the order would have been granted for a specified period e.g. 1 June 2010 for 5 years – meaning in usual circumstances, the renewal application would require to be lodged by 1 June 2020 at the very latest.

Impact:  Rather than renewals being out of time due to reports not being able to be prepared, the Covid legislation amends the 2000 Act by “stopping the clock” on the period of the guardianship whilst Covid provisions are in force.  The guardians are still able to use their powers. This means that when the provisions have expired whatever time was left on the guardianship order before the provisions come into force will remain.

• MHO allocation – where welfare powers are sought a Mental Health Officer (MHO) is one of the report writers who requires to prepare a report to accompany the application to the Court. The MHO is allocated by the local authority for the area in which the incapax adult resides.

Impact:  Due to lockdown measures, some local authorities had been unable to allocate MHOs or MHOs who had been allocated were unable to complete reports timeously for lodging.  Hopefully now we are seeing restrictions being gradually eased, MHO allocation will recommence and MHOs and other report writers will be in a position to meet the incapax adult for the purpose of assessment.

What about where a Court date had been allocated?

Due to lockdown measures some courts have closed resulting in "hub" courts dealing with all matters in Scotland.  “Urgent” applications may still be heard by the Courts.

The positions adopted by the Courts have been varied:

• Courts “discharging” hearing dates. Effectively cancelling the hearing date and a new hearing date will be allocated by the Court when they are able to do so.
• Courts setting hearing dates 8 or 12 weeks forward from the original allocated date. Depending on guidance, these dates may require to be reviewed again.
• Glasgow Sheriff Court are continuing with hearing dates which they had previously set (being heard in Glasgow Sheriff Court currently, not in Glasgow Tribunals Centre). Social distancing measures apply and where possible, only the Solicitor should attend the hearing at this time. If the application is opposed or opposition is anticipated, it is likely a continuation of the hearing date will be scheduled by the Court.

Local Authority moving an adult to residential accommodation to protect vulnerable adults (s 13za Social Work (Scotland) Act).

Social Work departments within local authorities have powers under the Social Work (Scotland) Act 1968 to arrange services for and move an incapax adult where they consider these steps would benefit the adult.  Previously the local authority could not take these steps if they were aware that a welfare guardian, intervenor or attorney has powers relating to these steps, or that an application has been made (but not yet determined) for a guardianship or intervention order relating to these steps. The Covid legislation has made changes (detailed below) however these are one of the few provisions that will only come into force when (and if) Ministers approve its use.  To do so, Ministers will require to invoke regulations.  This may not be a “blanket” regulation immediately applicable to all local authority areas and may be geographically specific to address needs within specific local authority areas. 

Impact: Only if provisions approved by Ministers – will provide (temporary) measures in the following areas:

• Removing the requirement of the local authority to take into account the past and present wishes of the adult, and the views of any interested party when taking steps to help an adult lacking capacity benefit from community care services, including moving to residential accommodation.
• Allows the local authority to arrange services for and move an adult even if there is a guardian, intervenor or attorney appointed with the relevant powers or if an application is pending.

This will, if provisions are approved, allow local authorities to take immediate steps to safeguard the health and welfare of vulnerable adults. This may cover situations where adults are being moved from acute hospital wards to residential care or other appropriate accommodation in order to protect them from risk of infection.

Anyone who requires to make an application for guardianship of a loved one (or renew of an existing  application) can and should continue to do so at this time.  Initial meetings can take place by telephone or video call.  Detailed instructions can also be provided via email if this is more convenient. A private application for guardianship can be expensive, so it is important to check whether your solicitor offers Legal Aid.  In Scotland, Civil Legal Aid is available to cover the costs of an application or renewal.  Where the application includes welfare powers the Legal Aid Board will grant the application on its merits only meaning there is no financial assessment.  This means Legal Aid can be granted irrespective of the assets and capital held by the incapax person. The initial work may be covered under Advice & Assistance – this is means tested and based on the incapax person’s income and capital. There are certain disregards so it is always worthwhile checking with your solicitor on eligibility. Where ineligible for Advice & Assistance, there will be a fee payable for the initial work (which can be paid from the incapax person’s funds).  our team will always advise you of the availability of legal aid and assess your eligibility for Advice & Assistance. 

At TC Young, we have a dedicated Adults with Incapacity team should you wish to discuss a guardianship application for a loved one.  A member of our highly experienced team will be happy to chat to you whether that be to provide you with initial information, assess legal aid eligibility or start the process.  During lockdown you can contact us via our main reception numbers – (our phone lines are manned from 9am – 5pm Monday to Friday) or drop an email enquiry to either Alison Hempsey (amh@tcyoung.co.uk) or Lynne Lind (ltl@tcyoung.co.uk) and a member of the team can either call you or provide you with initial information by email if you prefer.