Appointment and payment of curators ad litem who are also practicing solicitors

Where the curator ad litem appointed by the sheriff in the proceedings:

• Is a practising solicitor
• Decides to act in dual capacity as both curator and solicitor to the incapable adult or child

That curator can make an application as a solicitor, for legal aid on behalf of the incapable adult or child to us.  In such an application this person will be both the nominated solicitor and the incapable adult’s or child’s representative.

In spite of this:

• We can only pay those charges applicable to actual legal representation (that is, the provision of legal services by a solicitor) to the incapable adult or child
• We cannot pay any charges that relate to work carried out in the capacity of curator

For example:

• Charges relating to drafting a written report for the sheriff will not be met from the Fund as this is clearly work carried out in the capacity of a curator and does not amount to provision of legal services to the incapable adult or child.
• Charges associated with observing contact visits will be considered to be curatorial in nature and are not considered to amount to legal representation of the incapable adult or child.

Charges associated with spending time with relevant persons, children, other individuals or carers (unless the time is spent obtaining precognitions from these people because they are witnesses or potential witnesses) will not be met from the Fund as, again, we consider these charges to be curatorial in nature.

We take this approach, where:

• A sheriff appoints a curator ad litem to act for an incapable adult relevant person who lacks capacity to directly instruct their own solicitor
• A sheriff appoints a curator ad litem on behalf of the child or children in the proceedings

There is nothing to prevent a curator, whether a practising solicitor or not, from instructing a solicitor to represent them, as opposed to the incapable adult or child.  However, children’s legal aid is only available to:

• A child
• A relevant person
• A deemed relevant person
• A person seeking to be deemed relevant
• A “section 126” individual.

It is not available to anybody else, irrespective of any office that they hold. Therefore, such a Curator ad litem cannot receive legal aid by a registered children’s solicitor.

A curator appointed by a sheriff in respect of an incapable adult or child in the proceedings can instruct you to act for the incapable adult or child.

Here, if you are acting for the incapable adult or child you can apply to us for legal aid on behalf of the incapable adult or child and you will be the nominated solicitor.  The curator’s details can be inserted in the “representative” section and they can sign the application on behalf of the incapable adult or child. Therefore, the curator named in the representative section of the form will differ from the nominated solicitor.

We must apply the statutory merits tests:

• Whether it is reasonable in the particular circumstances of the case that the incapable adult should receive children’s legal aid
• Whether is it in the best interests of the child and reasonable in the particular circumstances of the case that the child should receive children’s legal aid

You will have to satisfy us that these tests have been met.

If we are grant legal aid to the incapable adult or child, you can send us your account for work instructed by the curator on behalf of the incapable adult.  We will pay for all reasonable and necessary work.

None of curator’s work can be paid from the Fund.  Unlike the position for safeguarders, there is no statutory payment mechanism for curators.