Adults with Incapacity (AWI)

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.

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.

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.

We have been told that the objection period can cause difficulties for solicitors, particularly in more complex legal aid application, such as those submitted on behalf of an adult who is the subject of the proceedings.

If the objection period is going to cause difficulties for you in conducting the proceedings, then you may ask us to dispense with, or postpone, intimation of an application to an opponent.

You do this by noting “not to be intimated” in the first line of the opponent’s address, and omitting the opponent’s address from the application form.

You must also provide us with an explanation for dispensing with intimation.

You can do this using the free text box “reasons why there are no supporting documents” within the civ sol registration screen.

If the opponent is willing to consent to dispensing with the objection period, then an email from them confirming this should be provided with the application.

Please note that we can only agree to dispense with the objection period at the start of the application process, before the application has been placed under assessment and the intimation letters sent to the opponent. Once the objection period has been triggered, it requires to continue.

If your client wants legal aid to apply for a guardianship order under one of the sections mentioned below, then we have introduced a simplified application process in respect of the statements needed to support the application for civil legal aid.

The orders are:

• s53(1) intervention order in relation to welfare powers
• s57(1) guardianship order including welfare powers
• s60(1) renewal of guardianship including welfare powers
• s62(1) joint guardianship order including welfare powers
• s63(1) appointment of a substitute guardian including welfare powers.

These applications do not require assessment of the applicant’s financial eligibility, and use category code AISAW within the Civ Sol application which you submit on Legal Aid Online.

Please note that for all other types of legal aid applications relating to the Adults with Incapacity (Scotland) Act 2000 our application requirements are unchanged and the usual supporting documentation is needed.

The streamlined application process

Option 1: We have devised a short AWI applicant information form which sets out all the information we need to make our decision.  As long as the form provides the information requested in full then we will not require a statement by the applicant or their supporting witness.  However, where the application seeks renewal of an order, a copy of the order to be renewed should be provided.

Option 2:  Solicitors who wish to can use the form as a guide to help complete the applicant’s statement, which will need to include the answers to these questions. Where these questions are answered there is no need to include a statement by a supporting witness.  Where you seek renewal of an order, a copy of the order to be renewed should be provided

Do you need to list opponents?

The streamlined process is intended for applicants applying for unopposed guardianship orders. There is no need to include any opponents in such an application.

If you do include an unnecessary opponent then we have to intimate the legal aid application upon them, and hold the application for 14 days (the ‘objection period’) before we can take a decision.

This is why you should not include an ‘opponent’ unless they are formally opposing the court proceedings.

AWI case scenarios are increasingly complex. If your case does not fall into one of the straightforward scenarios listed for identifying the correct category code please read the guidance below about contacting us.

Which category code should you select?

If you are looking to apply for or to oppose an order under only one of the following:

• s53(1) intervention order in relation to welfare powers
• s57(1) guardianship order including welfare powers
• s60(1) renewal of guardianship including welfare powers
• s62(1) joint guardianship order including welfare powers
• s63(1) appointment of a substitute guardian including welfare powers.

Then use category code:

• AISAW when applying: it is likely that there will be no financial assessment.

If it is none of the above, then use category code:

• AISA when applying: it is likely a financial assessment will be needed based on the resources of the adult.

What if your case does not meet either of the above scenarios?

We have found that there are increasingly more complex scenarios arising in these cases, particularly in cases where orders are in place, but changes are needed.

Occasionally a range of orders will be sought and, in such cases, it is the primary order you are seeking which determines the application of the legal aid regulations.

We understand that, depending on the court process being used, it can be difficult to work out whether a financial assessment will be required in terms of the regulations.

If your case does not fit exactly into any of the scenarios above, we recommend that you contact Wendy Dalgleish and Kim Blance with details of the case, and we will let you know which category code to use.

Please give details of the orders you seek, along with the relevant sections of the Adults with Incapacity (Scotland) Act 2000, so that we can advise you how to proceed.

It would be helpful if you could do this as early as possible, as we may not be able to give a decision immediately.

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 £3,000, 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

Where the assisted person has legal aid to apply for a guardianship order, then the cost of the initial Bond of Caution is included under the grant of legal aid.

You do not require our prior approval to meet this cost unless the premium exceeds £3,000, in which case you need our approval for unusually large expenditure.

If proceedings become opposed

If you have legal aid for a guardianship order and the proceeding become contested by any party you must amend the grant of legal aid to include the opponent’s details.

You will need to use the ‘amend’ application within Legal Aid Online to add the opponent.

You should upload the usual documentation to support the amendment application, namely, a statutory statement, statement of the applicant and a supporting witness commenting on the Answers, and a copy of the Answers themselves.

If prospects of success change or there are other developments which might alter our assessment of probable cause or reasonableness

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

Case cost limit

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.

How we make our decision

• the decision-maker will consider whether the statutory tests of probable cause and reasonableness are met
• 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.
• 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 the person seeking the order is 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 for the benefit 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.

AWI 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.

AWI 8 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

Please see the Civil legal aid – detailed fees tables for specific fee rates.

The fee for framing each citation of a party includes the execution of the citation.

The citation fee at the current prescribed rate is chargeable for the following:

• Form 20 – Notice of application under the 2000 Act
• Form 21 – Notice to Manager under the 2000 Act

In addition to the prescribed fee for a citation you will be entitled a formal fee for signing the citation, as per Schedule 5, 5 (d) and a non-formal letter fee for serving the citation, as per Schedule 5, 4 (g).

No separate fee is payable for the Form 7 (certificate of citation) or Form 22 (certificate of delivery by manager). The framing of the citation includes the execution of service, as per the prescribed fee laid down in Schedule 5, 4 (b) each citation of a party, witness or haver including execution thereof citation fee.”

Although a fee for framing the Form 7 and Form 22 is not separately chargeable, you will be entitled to a fee for signing the execution of service, as per Schedule 5, 5 (d).

Service

Service upon the adult and all interested parties should be done by first class recorded delivery post, chargeable at the non-formal letter fee, as per Schedule 5,4 (g).

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.