UPDATED: New simplified application process for certain unopposed Guardianship orders under the Adults with Incapacity (Scotland) Act 2000, and reminder on the process to ask us to dispense with or postpone intimation to an opponent

UPDATE: we have added clarification to confirm that the simplified process still requires a CivSol application to be submitted online

Following feedback from solicitors we have introduced a simplified application process when you apply for legal aid for a Guardianship order for your client under one of the five sections mentioned below.

We are doing this to assist when an order is needed quickly for the benefit of the adult.

This update also has information on asking us to dispense with, or postpone, intimation of an application to an opponent in more complex applications where the objection period is going to cause difficulties for you in conducting the proceedings.

Our legal aid guidance Adults with Incapacity (AWI) has been updated to reflect the changes.

Simplified application process

What is changing?

The simplified application process will apply to applications under the following orders:

  • 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 when the CivSol application is submitted through Legal Aid Online.

The new process

We have amended our requirements in connection with the statements which are needed to support your CivSol application.

A short AWI applicant information form has been devised 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 separate statement of the applicant or supporting statement.

While a completed AWI applicant information form will be sufficient supporting evidence for these applications, solicitors who wish to complete an applicant’s statement can use the form as a guide to help complete the statement.

Please note that for applications to renew a guardianship order we still need a copy of the order you want to renew.

Do you need to list opponents?

If the applicant is applying for an unopposed guardianship order, then you do not need to include an opponent in the legal aid application.

If you 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 (in which case the streamlined application process would not be appropriate).

Why is this changing?

We understand that an order is often needed quickly for the benefit of the adult.

If good quality information is provided in the answers to the AWI applicant information form then this should be sufficient to allow us to assess whether the statutory tests of probable cause and reasonableness are met without requiring statements from the applicant and a supporting witness.

Solicitors will be able to submit applications without having to delay whilst a supporting statement is obtained.

What to do when a party opposes the proceedings after the legal aid application is submitted

If a party opposes the proceedings after the legal aid application is submitted, you will need to use the ‘amend’ application within Legal Aid Online to add the opponent.

We will require 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 a statement from a supporting witness is not available then an explanation should be given.

Other application types relating to proceedings under the Act

For all other types of legal aid applications relating to the 2000 Act our application requirements are unchanged and the usual supporting documentation is needed.

Cases where the objection period is causing difficulties for conduct of the case

Dispensation with the objection period in more complex applications

We have been told that the objection period can cause difficulties for solicitors, particularly in more complex legal aid applications, 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 please remember that it is always open to you to 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 explain why you want to dispense with, or postpone, intimation. You do this by including this information in 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.

Special Urgency Provisions

Please remember that where it is not going to be possible for the application process to be completed before urgent steps in proceedings need to be carried out, you can use the special urgency provisions to ask for cover to allow you to carry out those urgent steps.

There are some limited situations where you may undertake special urgency work without our prior approval (SU2), such as lodging defences.

Every other step in proceedings you want to take before a grant of legal aid is in place will require our prior approval (SU4).

We prioritise all legal aid applications relation to Adults with Incapacity cases.

However, if there is particularly pressing urgency please send us an online message explaining the position, and we will do all we can to make our decision as soon as possible.

More information

Please contact Wendy Dalgleish, Head of Civil and Children’s Legal Assistance at DalgleishWe@slab.org.uk

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