Chapter 5 A step-by-step guide to applying for an order
About the application process
This chapter sets out the process of applying for an order and the reports required to support the application. You may wish to engage a solicitor to carry out the necessary legal steps. This is particularly advisable if your application is for powers that are quite complex, or where your application is likely to give rise to objections. However, it is not essential to use a solicitor and you can make the application yourself - this chapter tells you how. Another option, which has been used successfully by some carers, has been to collaborate with the solicitor by carrying out most of the 'leg work' themselves, i.e. gathering reports, with the solicitor lodging the application and representing the applicant at the hearing.
Before engaging a solicitor, you should ask whether legal aid is available.
You may be eligible to receive initial help from a solicitor using the type of legal aid known as Advice and Assistance. Your own means are not taken into account, but your solicitor will decide on eligibility by looking at the means of the adult. You may require to pay a contribution towards your solicitor's bill.
If you then wish to seek an order from the court, you may be eligible for civil legal aid. Your solicitor can help you apply to the Scottish Legal Aid Board (SLAB) for civil legal aid. The Board looks at the merits of the case, and
the means of the adult. Where the adult's assets are above the eligibility level, and this is because they mainly constitute compensation to meet current and future care costs, SLAB is able to take this into account.
Since August 2006, there has been no means test applied by the Board in cases relating to either welfare powers only, or a combination of welfare and financial powers.
SLAB has a list of solicitors' firms which are registered to provide civil legal assistance. You can also contact the Board to obtain more information about legal aid. (See Appendix 5.)
If you are not eligible for legal aid, you should ask your solicitor for an estimate of the fees you will have to pay. Fees can vary, possibly around £2000 but may be higher, depending on whether your application is likely to be contested. Where the application to the court is for financial powers only, you can ask the court to order your bill to be paid from the adult's estate.
Making the application yourself
If you make the application yourself there will be various fees to pay for the medical certificates, lodging the application, etc. again, these can be met out of the adult's estate if you apply for them to be covered by the order (see Appendix 4). You won't, however, be able to apply for legal aid, as this is intended only to meet the costs of a solicitor.
The process for making an application for an intervention order and guardianship are very much the same in terms of the application to be made to the sheriff court, the reports required and fees. The time it takes will depend on how straight forward the application is.
Making an application yourself - steps to take
The application you need to complete and submit to the sheriff court is called a 'Summary Application'. There is no standard form as such. A basic 'style' or template to be followed is provided for in legislation and is reproduced at Appendix 3. Examples of completed applications for guardianship and intervention orders are also reproduced at Appendix 3 for your assistance. However, these will need to be adjusted to reflect the circumstances particular to your application. Your local Citizens Advice Bureau or voluntary organisation (see Appendix 5) may be able to help.
Step 1: Obtaining and completing the summary application form
Your completed application should be lodged with the adult's local sheriff clerk who will be able to advise you on the steps you can expect as your case progresses through the court process. However, please note that the sheriff clerk cannot provide you with legal advice or assist you in drafting your application. The address of the relevant sheriff clerk can be found in the telephone book, or the Scottish Court Service website at www.scotcourts.gov.uk.
Before completing the application form, think very carefully about the powers you are requesting and why they are needed. You will need to justify these in terms of the Principles (see Applying the principles).
When the summary application form is completed and 'lodged' with (received by) the sheriff court, it must be accompanied by three reports to support your application (two medical and one 'suitability' report). The exact reports you need, and who has to write them, will depend on the type of application you are making - whether it is for a financial order, welfare or both (see details below), and whether it is for an adult with mental incapacity or severe communications difficulties due to a physical condition. The reports have to be submitted on specific forms and charges may apply.
Step 2: Obtaining reports required to support your application
If the person you are asking to prepare a report in support of your application does not already have or know how to obtain the necessary forms, you can refer them to the following website where the forms are available electronically at: http://www.scotland.gov.uk/Topics/Justice/Civil/awi. It is better to access the forms electronically because the size of the various sections to be completed can be adjusted. If there is any difficulty with this, please contact the Scottish Government, Civil Law and Legal System Division (telephone: 0131 244 3581).
Reports needed to accompany an application
(See Appendix 1 for full details)
- All applications for an order need to be accompanied by two medical reports based on an assessment of the capacity of the adult in relation to the decision-making powers you are requesting.
- All applications have to be accompanied by a 'suitability' report containing an opinion on:
- the general appropriateness of the order sought, based on an interview and assessment of the adult;
- your suitability as the proposed guardian.
Requesting and submitting reports within deadlines
- In the case of all reports, the interview or examination of the adult must have taken place not more than 30 days before the application is lodged with the sheriff court. In certain circumstances, sheriffs have discretion to accept medical reports which are more than 30 days old.
- Under the Act, you are required to give the local authority 21 days to prepare a report on an application for an order relating to personal welfare.
Each person providing a report will need to have a copy of the completed summary application before they can begin. You will need to send them a photocopy with your request and deadline dates. You need to ensure that they are able to deliver their reports within the necessary time-frame. Otherwise you will have to start again and make a new application with all that entails - including potential stress for you, the adult, as well as increased costs and delays.
Notifying other interested parties (legal term 'intimate')
When the summary application form and accompanying reports are completed they have to be 'lodged' with the sheriff, that is given to the sheriff clerk who will lodge the papers. It is advisable to hand these in to the sheriff clerk or send by next-day delivery or other form of registered mail.
The application form includes a space for you to put the contact details of family members and others with an interest in the welfare of the adult, who need to know about the application. The sheriff will then make an order for these 'interested parties' including the adult, to be officially notified of the application.
Step 3: Lodging the application with the sheriff and what happens next
If you intend to take the application forward yourself, the sheriff clerk will notify all interested parties for you. If you have a solicitor, it will be his/her responsibility to notify the relevant people. They will be sent: a copy of your summary application; accompanying reports and the date of the hearing.
Notification provides the opportunity for anyone who wishes, to oppose the application. The following people will normally be notified:
- the adult;
- the adult's nearest relative;
- the adult's primary carer;
- the adult's named person (where there is one);
- any guardian, welfare attorney or continuing attorney of the adult with relevant powers;
- the Public Guardian;
- the local authority, where welfare powers are being sought;
- the Mental Welfare Commission, where welfare powers are being sought and the adult's incapacity is by reason of mental disorder;
- any other person directed by the sheriff.
In certain rare circumstances, the sheriff can direct that the adult should not be notified of the application or the outcome of the hearing if it was felt this might pose a serious risk to the health of the adult. The court will only allow this on the basis of two medical reports. (For further information see Appendix 6, Q3.)
Where does the hearing take place?
The sheriff may hold the hearing in chambers - his/her office - or in the courtroom. The courtroom can be daunting but don't be put off! If there are quite a lot of people attending it is more likely to be held in a courtroom. The hearing is normally held in private.
Step 4: Attending the hearing
Who should attend?
If you are making the application yourself, you, the applicant, should attend the hearing to answer any questions from the sheriff. However, it is not necessary to attend if you have engaged a solicitor to represent you. The adult can also attend and have another person to support them. This could be, for example, a relative, friend, or someone from an independent advocacy. The adult may have their own legal representative if they want to make any objections. However, it is not always appropriate for the person to attend the hearing, especially where he/she is unable to understand any of the proceedings or would find it too distressing or confusing. Anyone else with an interest in the application can also be heard either personally or through a solicitor.
What happens if someone opposes the application?
Where someone with an interest, or the adult, wishes to oppose the granting of the application, more than one hearing may be needed to hear the evidence of witnesses. Sometimes an interim order is granted to enable action to be taken for a temporary arrangement to be made. If you think that your application may be opposed it is advisable to seek legal advice.
What a sheriff may do at the hearing
The sheriff has to reach a decision about the application on the basis of the reports he/she has received and representations made (if any) at the hearing. He/she can:
- grant the order as requested; or grant the order subject to conditions or restrictions;
- decide how long the guardianship order will last. It will normally be for three years and subject to review. However the sheriff has discretion to make it for a shorter period or ongoing depending on individual circumstances;
- request further reports, which could include an interview with and/or further assessment of the adult, and possibly returning to those previously interviewed, or interviews with others with an interest in the adult's welfare. This usually happens where the information provided is inadequate or does not fully support the application, or where there are conflicts about what will be of most benefit for the adult. The sheriff may appoint a 'safeguarder' (normally a lawyer) to carry out the interviews and report back to the court. The sheriff will then reach a decision on the basis of all the information available;
- make an interim order, pending fuller consideration of the application. An interim order means the sheriff will appoint someone to act on a temporary basis, for up to three months (sometimes more than one interim order is needed where the case is complex).
Registration and notification of an order
The sheriff clerk will send a copy of the 'interlocutor' (the decision of the court) to the Public Guardian who will register it and issue you with the order/certificate of authorisation. The Public Guardian must notify the adult (unless the court has directed not to do so) and the local authority.
Step 5: The sheriff grants the order - what next?
However, in relation to a financial order, if you have been required to find Caution (a type of insurance), the Public Guardian will not issue a certificate until satisfied that you have got this (see Appendix 2).
The Public Guardian must also notify the Mental Welfare Commission where the adult's incapacity is due to mental disorder and the guardianship order relates to personal welfare.
For further details
- Scottish Government: Code of Practice for Persons Authorised under Intervention Orders and Guardianship; Code of Practice for Local Authorities Exercising Functions under the Act.
Codes of Practice for the Act, and leaflets are available from the Scottish Government website. Information about obtaining hard copies is available on the website or by calling 0131 244 3581. The Office of the Public Guardian (Scotland) provides information booklets and forms (free) plus online information about all the financial management options available under the Act (see Appendix 5).
Flowchart: Making an application for an order
Email: Alison Mason