Although restrictions have eased there is still a significant impact, which will be felt in 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 with 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 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 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 adults in person for the purpose of assessment, meaning some applications were put on hold until measures were eased/lifted.  This has resulted in a significant backlog of applications requiring assessments to be carried out.  Now that measures are eased this will result in increased demand and add to what were already significant waiting lists for report writers, particularly for Mental Health Officer reports. 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 2011 for 10 years – meaning in usual circumstances, the renewal application would require to be lodged by 1 June 2021 at the very latest.

Impact:  Rather than renewals being out of time due to reports not being able to be prepared, the 2020 Act amended the 2000 Act by “stopping the clock” on the period of the guardianship from 7^th April to 29^th September 2020.  The effect of this is to add an additional 176 days to the original expiry date of the order. So for the order granted on 1^st June 2010 for a period of 10 years, the amended expiry date will be 24^th November 2021.

Court hearings

• Civil court business throughout Scotland continues to be dealt with remotely. The method by which hearings under the 2000 Act are dealt with varies from court to court, but can include hearings by way of written submissions from the proposed guardian’s solicitor, by telephone conference or by video hearing.

Anyone who requires to make an application for guardianship of a loved one (or renew 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.

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.  Get in touch.