Application in respect of DC, Glasgow Sheriff Court, 22 October 2010

In this recent case consideration was given to the issue of whether the duty to intimate an application for guardianship on the adult concerned could be dispensed with in terms of the Adults With Incapacity (Scotland) Act 2000.

The application for guardianship was sought for control over the financial affairs and the welfare of the adult concerned. Under the 2000 Act the adult who is the subject of such a guardianship order must be notified of the application being made for power of their affairs. However within the Act the court is also granted powers, in exceptional circumstances, to dispense with this requirement to notify the adult. Where the actual intimation of the application (for guardianship etc) "would be likely to pose a serious risk to the health of the adult" the court may rule that intimation shall not be required in that case.

The rules regarding service of such applications require that two medical certificates are provided to the court to show that intimation to the adult would pose a serious health risk.

In the current case the court held that the form (signed by two medical practitioners) which was presented along with the application was inappropriate for that case. Furthermore the fact that only two lines were given as reasons as to why intimation ought to be dispensed with, combined with the fact that one medical certificate simply stated that the adult was ‘too disturbed and mentally ill’ was not considered sufficient to satisfy the test.

The courts seem to be of the view that intimation to the adult concerned is a critical part of the process in such cases. The fact that the adult concerned may be not capable of fully understanding the documents served on them does not remove this requirement and intimation should only be dispensed with where there are compelling medical reasons presented to suggest actual intimation on the adult may risk seriously harming their health.

To view the decision in full see Application in Respect of DC

Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult, Application in respect of DC, Glasgow Sheriff Court 22 October 2010, Sheriff J A Baird