Applications for civil legal aid to raise proceedings for welfare and/or financial guardianship should be submitted in the name of the proposed guardian, or the party who is opposing the order.

Each person applying to become a joint guardian needs to submit their own application for legal aid, unless proceedings are only for one guardian to be appointed with a substitute guardian also named. The only exception to this is if the substitute guardian is also raising proceedings in their own name.

You need to apply for a guardianship order prior to a young adult’s sixteenth birthday. Reports should be obtained at a suitable stage so that there is no risk of them time barring.

Legal aid is available to oppose another person’s guardianship proceedings and raise your own guardianship order. Here, two applications would be needed – one to oppose the proceedings and one for your own minute. However, you will only need to make one application if the court is willing to accept a “counterclaim”. Your client should mention this in your statutory statement if this is the case.

Seeking an order

An application for legal aid to pursue guardianship should be accompanied by a statement from your client giving details of:

  • Reasons why they are seeking the order
  • Information about the nature of the adult’s incapacity
  • Suitability to be appointed
  • Address the appropriateness of the order.

A brief statement of one or two pages will usually suffice.

The court will only appoint a guardian if this is the least restrictive option available. We would expect your client to have considered all other available options, including:

  • An Access to Funds Application (in the case of financial guardianship)
  • Department of Work and Pensions appointee arrangement

More information about the options available can be obtained from the website of the Office of the Public Guardian for Scotland..

Additional support for the application could come from:

  • Statement from a third party, such as a friend or family member, who can confirm the circumstances in which the adult requires an order and explain why your client is a suitable person to seek the order.
  • The process for a straightforward renewal of a guardianship mirrors the application requirements set out above. You should also include a copy of the order you intend to renew along with the applicant’s statement and supporting statement.

Opposing an order

If you client wishes to oppose a guardianship order they should provide:

  • A copy of the guardianship application
  • A statement from the person applying for legal aid explaining why the order sought is not appropriate
  • A copy of statutory reports obtained by the person seeking the order, if available.

Your client should include as much information as possible to explain why they are opposing the order.

If your client also seeks to counterclaim then information should be provided, to explain why the order sought is appropriate.

This could be:

  • A statement from a third party such as a friend, family member, or where your client’s capacity is in dispute, a GP or other health professional,  to explain why the order sought should not be granted.
  • Information to explain why they are a suitable person to seek the appointment.

Financial assessment in AWI cases

If we have advised you to use the category code AISAW then it is likely that there will be no financial assessment.

A financial assessment of the adult’s resources is required in any other proceedings such as a variation of an existing order or recall of the appointment of a guardian. Please contact Wendy Dalgleish or Kim Blance for assistance if you are not sure whether a financial assessment is needed.

When is sanction needed?

Initial statutory reports

Sanction is not needed for the first set of statutory reports, which the court needs to make a decision. We understand that it can take some time for the required Mental Health Officer report to be obtained. It will often be appropriate wait until the MHO has been appointed and their reports are completed, before instructing medical reports, to avoid them becoming out of date.

Sanction will be required to instruct any further reports if reports paid for by legal aid become time barred. We will meet the costs of these subsequent reports if you can show that reasonable steps were taken when instructing the reports to mitigate against this risk. If this happens, we prefer the same doctor is instructed to minimise the additional costs involved.

In some cases where your client seeks financial powers there may be a need for a report on the suitability of the proposed financial guardian, known as an AWI 8 report. Such a report is mandatory when the applicant seeks only financial powers. The report can also be requested by the court in other cases. Sanction is not needed for this report (unless the cost exceeds £2000, in which case sanction for unusually large expenditure is needed), but it will need to be shown that it was appropriate for the report to be obtained at the accounts stage.

Safeguarder

Sanction is not needed to cover the fee of a safeguarder as long as you have a valid grant of legal aid in place when one is appointed.

Please note that we will only cover the safeguarder’s fee if the court orders the assisted person to meet that cost. You might need to increase your case cost limit if a safeguarder is appointed.

Bond of caution

You should ask for sanction to cover the costs of the premium.

Before we can consider the request, we need:

  • Details of the circumstances leading to the appointment of the guardian
  • Details of any litigation – including any claims that may be made in the litigation
  • Information to show that there are no other readily available funds to meet the costs of the premium

Important post-grant information

Your client should amend their application to show the details of any opponent if you are seeking guardianship (and the proceedings are contested by any party).

You should provide a stage report so that we can decide whether the tests for legal aid are still met if the prospects of success change or there are any significant developments that will alter our assessment.

You are likely to need to apply for a case cost increase if a safeguarder is appointed, and the assisted person is found liable to meet the cost.

Our procedure

  • The decision maker will consider whether the statutory tests of probable cause and reasonableness are met.
  1. We will use the guidance above. You should provide us with the necessary information required to decide whether the test of probable cause is met and it is reasonable for legal aid to be granted.
  • We will generally consider that the reasonableness test is satisfied where your client wants to be appointed guardian and they are the most suitable candidate, there is information provided to show that the adult lacks the capacity to deal with their affairs that the applicant is a suitable person to be appointed and that guardianship appears to be the least restrictive option available.
  1. In cases where your client wants to oppose guardianship we will consider each case based on its own facts and circumstances. We usually grant legal aid if your client is the adult involved in the case and they provide evidence to show that they have sufficient capacity to deal with their affairs, or that the orders sought are unduly restrictive.

We are also likely to grant legal aid in cases where an individual wants to oppose guardianship because:

  • Your client has evidence they are not a suitable person to be appointed, for example due to past financial impropriety.
  • They have very limited contact with the adult who is the subject of the order.
  • There is evidence that the relationship between the adult and the proposed guardian would not allow the guardian to operate in the best interests of the adult.

If the application is refused you can submit a review application.

Practice notes

We will always you to comply with any applicable Practice Note issued by the Sheriff Court.

AWI1 reports

Reports from non-treating professionals are paid between £100-£185 inclusive of all travel and mileage (excluding VAT). Reports from treating psychiatrists and the adult’s own GP are payable to an upper limit of £80 (inclusive of all charges) and do not require a detailed invoice. Anything claimed in excess of these figures requires a detailed breakdown of the work done.

AWI8 reports

A copy of the interlocutor requesting the report should be included with the account. If there is no interlocutor, you will need to include details from the Court confirming that the report was requested by the Sheriff. We will be unable to pay for the report without this.

Land certificates

We will meet the outlay for obtaining a land certificate to enable the land certificate number to be included in the summary application.

Conveyancing

Where the property is not on the land register we will meet the outlay for obtaining a conveyancing search report for a proper description of the property to be narrated in the summary application.

Tracing agents

The whereabouts of an immediate family member or other person likely to have an interest in an application may be unknown. Generally, the use of tracing agents is not necessary as the court may dispense with the need to effect service upon the individual based on the averments made in the Summary Application.

Drafting summary applications

We understand that the draft summary application may need to be updated once all the required reports are returned. The Schedule 5, paragraph 4(a) sets out a framing charge per sheet of 250 words.

There are two different scenarios for charging:

  • You can charge for the final sheetage when the summary application is lengthier than the initial draft.
  • You can charge for the final sheetage plus a revisal fee in terms of Schedule 5, paragraph 5(b) if the application is reduced.

Framing forms

It should be clear from the account what forms of service are being claimed for. A formal fee at the current rate is payable for framing forms:

  • Form 20 – Notice of application under the 2000 Act
  • Form 21 – Notice to Manager under the 2000 Act
  • Form 22 – Certificate of delivery by Manager under the 2000 Act
  • Execution of service

A non-formal framing fee at the current rate shall be allowed for:

  • Citations

Service

Service upon the adult and all interested parties should be done by first class recorded delivery post.

We will only consider payment of Sheriff Officer fees if the postal service has been unsuccessful. You should explain in your account why this was necessary.

Sheriff officers will be able to provide advice on the appropriate method of delivery if you need to make service abroad and the postal service is not an option.

Work outwith scope of civil legal aid

Access to fund (Intromit with Funds) orders are obtained without recourse to court.

The process for appointment is usually an administrative one, for which the Office of the Public Guardian (OPG) is responsible. It is, therefore, usually completely separate and not ancillary to the proceedings for guardianship.

The OPG does have the power to convene a hearing if objections are received to this. However, you do not need to be present at that hearing. Civil legal aid or ABWOR is not available for this purpose.

A diagnostic grant of advice and assistance may be appropriate to give initial advice on the process and to advise the client to contact the OPG or a CAB for assistance with the necessary paperwork. When assessing eligibility for advice and assistance it is the resources of the adult with incapacity that need to be taken into consideration.

 

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