AW 426/12 and
427/12
Opinion
of
John A
Baird, Esq., Advocate,
Sheriff
of Glasgow and Strathkelvin at Glasgow
In the
cases of
JM
and Mrs JM
25 January 2012
Background to
the applications
- These two
cases are applications brought under the provisions of the Adults with
Incapacity (Scotland) Act 2000, seeking the appointment of the applicants
as guardians, in respect of the welfare and property and financial affairs
of both adults. The adults are a married couple, with the husband being 88
years of age and his wife 85 years of age. They are a completely devoted
couple who have been married to each other for 62 years. They still both
live together at home, although Mrs JM is temporarily in hospital in
regard to physical ailments. They had four children and the applicants are
two of them, their son and one daughter, with the other two being
completely supportive of the application.
- In terms of
the general principles of the Act, the application is non-controversial,
and all of the requirements of the Act which the court is obliged to have
regard to have been fulfilled. What makes the case worthy of comment,
however, is that it represents another example, and on this occasion a
proper one, of a situation where it is desired to alter the financial affairs
of living adults, both of whom have lost the capacity to do so themselves.
Intervening
in the affairs of living adults
- I have written
previously on this subject. I have said previously that, as permitted by
the Act, I am perfectly prepared to authorise steps to be taken on behalf
of an adult who has lost capacity to take those steps himself or herself,
and which may affect that adult's property or financial affairs, or
regulate or effect an alteration in rights of succession, in circumstances
where it is warranted by the core principles of the Act, as set out in
section 1, where I am presented with clear and unequivocal evidence which
justifies authorising the taking of such a step., and where it appears
appropriate to do so. An example of the sort of situation where I have
been prepared to do so can be found in the case of M 2007 SLT
(Sh Ct) 24. Recently, in the case of P (Scottish Courts Website 23
November 2012) I refused to approve of the proposed intervention,
for the reasons there stated, and also referred to another case where I
had doubted whether the application was an appropriate one to grant.
- That of course
means that each application must be determined on its own merits and
governed by the general principles of the Act, but it may be useful for
future reference to set out what was proposed in this case and indicate
what material there was to support the application and why I was so firmly
of the view that on this occasion, it was completely appropriate to grant
both applications.
The Particular
Situation in the Present Case
- The adults
here have lived long and worthy lives. Mr M gave distinguished war
service, sustaining serious disability in the service of his country. The
couple married after the war and devoted themselves to the upbringing of
their family, who remain close to each other and their parents. They lived
for many years in a house tenanted from a housing association, but in 1997
the family persuaded them to utilise the legislation enabling them to
purchase the house. By that stage of course, both were living only on
their pensions, and they did not have either the capital to enable the
purchase, even at the discounted rate, or the income to service any loan
which might be taken out to enable its purchase.
- That is where
the family, and in particular their son, the second applicant, stepped in.
Being desirous of enabling their parents to live lives free of financial
worry and also of enabling them to own their own home, it was decided that
a loan would be obtained to enable the purchase, but that their son, the
second applicant, would be responsible for the repayment of that. He has
faithfully discharged that duty from that day to this. In fact, not only
has he personally made every single monthly payment due on the loan (which
was originally on an interest only basis), but he has also in the last few
years made substantial capital repayments towards it. Further, he
personally paid all of the fees and outlays in connection with the
original transaction, and has since 1997 paid all common repair costs,
ground maintenance charges, management fees and annual insurance premiums
due (the house is a tenement flat), all from his own personal resources.
- The result of
course is that the adults have been enabled to live in comfort in their
own home, on their reduced income, but free of financial obligation and
worry in connection therewith. At the time this arrangement was entered
into, the parties did consult solicitors and obtained advice as to the
financial obligations they were proposing to undertake. As a result, a
Minute of Agreement was drawn up, recording the detail of the arrangement
I have already set out, and binding the second applicant to make the
payments which he has faithfully done for the intervening 15 years. In
addition, at the same time, both of the adults wrote a will. The title to
the house was taken in the joint names of both adults, and their wills, mutatis
mutandis, are in identical terms. Shortly put, they both provide that
in the event of the death of both of them, the house in question is
bequeathed to the second applicant as his absolute property, plainly in
recognition of the steps taken by him to enable their financial security.
- Of course, the
situation here, as in many similar cases, is one where sadly the time has
come where neither adult is able to sustain living in the family home,
either independently or even together. The effect of the onset of dementia
in both of their cases has been that neither is any longer capable of
independent living, even taking into account the extent of assistance
available to them by carers and their children, who continue to devote
their time and energy to their parents in a constant and tireless manner.
- Only one step
was omitted which would have been appropriate at the time these
arrangements were set up in 1997. That is the step which is now proposed.
It was submitted that in order to recognise the extent of the financial
commitment being undertaken by the second applicant, the adults ought to
have been advised to grant a standard security in favour of their son. If
they had both died, and such a deed had been in place, the house would
have been left to him as his property, and he would have recouped the
extent of his outlay from any sale. Although the original loan was some
£10,800, the total amount he has personally expended over the years now
amounts to some £23,000. His parents of course have not died; but
probably both now require nursing or care home accommodation, and that
means fees will be exigible. The only way to realise the moneys to pay
these is by sale of the house.
- The submission
continued therefore that if the adults had been advised to grant a
standard security in favour of their son in 1997, they would in all
probability have done so, in order to protect his position. They cannot
do so now, but I was urged to allow the applicants to do now what ought to
have been done then, and on their behalf grant such a security over the
house in favour of the second applicant, so that at least he will be able
to recover on sale the moneys he has outlayed on his parents' behalf in
the last 16 years, it being understood that the free proceeds (there is a
minimal balance remaining on the original loan) will require to be used to
pay such care costs as may be necessary.
- I may say that
the present solicitors for the applicants have produced vouching and
documentation for every matter I have already referred to. I have seen the
Minute of Agreement, the wills signed by both adults, and financial
records for the whole of the last 16 years, all of which completely
support the averments made. Further, I have been given testimonials in
favour of the character of the applicants, and written assurances by the
applicants' other two siblings that everything set out above is correct,
that they completely support the application in all respects, and
completely accept that it is appropriate for this particular step now to
be taken.
- Accordingly,
this is a case where I had no hesitation in approving the application, not
only in its generality, but also in respect of the particular intervention
I have referred to. All of the appropriate tests have been satisfied and
all of the observations I have previously made have been attended to and
are complied with. It is completely clear to me that in the circumstances
of this case, both adults would have wanted the position of their son, the
second applicant, to be protected, and would have signed the proposed
document if it had been recommended to them at the time. It is completely
clear to me that if they were aware that such a step was being proposed
now, it would be to their benefit, not least for the simple peace of mind
it would give them, to take it themselves. Since sadly they cannot do that
themselves, I am quite satisfied that I should authorise that it be taken
on their behalf, complying as it does with the provisions of S1(3) of the
Act.
Solicitors for
the applicants: Lesley Hurst, TC Young Turnbull and Ward
