When applying for guardianship orders and working in cases involving adults with incapacity, it’s important to balance protection and respect for autonomy. A recent case shows this done well.

Samantha Miller, Senior Associate in our Dispute Resolution and Litigation team, comments on a recent case which resonated with her.

I read a case earlier this year where Shetland Islands Council applied for a welfare guardianship in respect of a 21-year-old. This is not uncommon, as many councils will act as guardians for adults who have no one able or willing to take on the role. However, the case and the way it was conducted really struck a chord with me and made me think – “If I was a sheriff, that is the type of sheriff I would want to be.”

The case was a powerful example of how a courtroom can be a place of collaboration, a safe space for parties to voice and discuss their concerns, and for a decision to be reached that is tailored to the individual concerned. It also showed how the adult, the solicitors, and other parties, including social workers, all play a part in making this possible. Below I explain why:

The facts of the case

  • The case concerned a 21-year-old man, referred to as ‘JC’ for privacy reasons. JC loved to travel.
  • JC had been diagnosed with a learning disability and had been assessed as not having the capacity to make certain decisions for himself.
  • Shetland Islands Council applied to be JC’s welfare guardian and sought authority to make certain decisions for him including; where he should live, what care plan should be in place for him, and whether he should be able to go on certain holidays.
  • JC opposed the application. Whilst initially represented by a solicitor, he subsequently represented himself, purportedly using AI to draft detailed arguments against the guardianship order.

Putting the adult first

In my view, a good solicitor will show compassion, respect, and flexibility at each step of the guardianship process to ensure that the adult’s views are obtained and respected. At the end of the day a guardianship application is about the adult.

The solicitor should also encourage the adult (insofar as possible) to participate in the process. This is exactly what the Sheriff did in this case.

It is clear from the judgement that the Sheriff wanted to make sure that JC had been given every opportunity to put forward his case and be involved in the action.

The following steps were taken by the Sheriff to encourage JC’s participation;

  • Appointment of a curator ad litem: the sheriff appointed a curator ad litem (a person appointed by a court to represent, protect, and advocate for the best interests of an individual during court proceedings). The curator ad litem ultimately reported that they were in support of the guardianship application.
  • 1st Meeting with JC: the Sheriff met with JC to get a better understanding of JC’s concerns about the guardianship application and to satisfy himself that the medical assessment was correct and that JC did lack capacity.
  • 2nd Meeting with JC: the Sheriff met with JC on a second occasion to explain that he had proposed to the Council that they amend their application to try and address JC’s concerns.
  • Wrote to JC explaining his decision: the Sheriff ultimately granted the order. After making this decision he wrote to JC explaining his decision, why he had made the decision and what this meant for JC moving forward. The Sheriff took this opportunity to reiterate that the Guardianship Order was not intended to be a means of controlling JC but supporting him.

It is notable that after the report from the curator ad litem, it would not have been uncommon for the welfare guardianship to have been granted but the Sheriff wanted to ensure JC’s views were ascertained to the fullest extent.

Prioritising support, not control

It is critical to remember that capacity is a fluid concept. By this I mean that a person's legal capacity is not viewed as ‘all-or-nothing’. With that, whilst a person may be deemed unable to make certain decisions for themselves, they may equally be able to make others.

In guardianship matters, the aim is to support the adult concerned whilst respecting their autonomy insofar as possible. This means ensuring that any guardianship order is tailored to the individual's specific needs and does not go beyond what is necessary. Again, the Sheriff in this case made sure to do this.

After listening to JC’s concerns the Sheriff concluded that JC was worried that he may be controlled by the Council and that his ability to travel would be impacted. Upon understanding JC’s worries, he suggested to the Council that they amend their application to make clear that JC’s views would be recognised and taken account of insofar as possible.

The Council agreed to amend their application as suggested. JC was ultimately content with this, and the guardianship order granted.

People often think that (1) a good solicitor will run with their position and stick to it until a decision is reached by a court, and (2) a court action involves two parties battling against one another. The opposite can be said for guardianships. Guardianships require ‘come and go’, adapting to changing circumstances and working together to make sure that by the end of the process you have an order that is going to benefit the adult.

Our team at Lindsays do everything in our power to adopt this approach and like the Sheriff in this case to respect the Adult concerned and make sure they are listened to.