A Guardian Angel?

The Adults with Incapacity (Scotland) Act 2000 introduced the concept of a friend , family member or other suitable individual being able to apply to court to be appointed as a guardian to look after the financial and welfare affairs relating to an incapacitated adult, helping the adult to deal with issues ranging from payment of daily bills to making decisions regarding serious medical conditions. The order may be granted for a specified period of time or it may be granted indefinitely if the adult is older and suffers from an illness that is not going to go away. The principles underlying this Act are that the appointment of a guardian must benefit the adult and must also provide the least restrictive option for that person.

The applicant can request to be appointed as a welfare guardian or as a financial guardian or both. The welfare part of the guardianship order covers powers to deal with all aspects of the adult’s welfare for example where they live, their clothing, decisions regarding their medical care etc. The financial element covers everything to do with the adult’s finances including dealing with bank accounts, paying care home fees, selling property etc. If the adult has savings then the guardian must keep all receipts showing what the adult’s money was spent on and submit yearly accounts to the Office of the Public Guardian.

The first step of the process is to apply for civil legal aid. Legal aid is always granted where there is a welfare element to the guardianship order. Normally legal aid is granted quickly when there is no financial assessment required. If the guardianship order is purely financial, legal aid may or may not be granted depending on the amount of the incapacitated adult’s assets.

Thereafter the application can be drafted. All details of the adult’s parents, siblings and other close relatives must be noted on the form which requires to be served upon them in due course. Three reports also have to be obtained in the case of welfare applications- one from the adult’s GP, one from the adult’s allocated psychiatrist if there is one (or from a psychiatrist specially appointed to report if there is no allocated psychiatrist )and lastly a report from a mental health officer appointed by the appropriate local authority, which report assesses the suitability of the applicant to be appointed as welfare guardian or in the case of a financial application only a report from a solicitor confirming the applicant’s suitability.

Timescales are very important when applying for guardianship orders. All three reports require to be lodged at the court within 30 days of the signing of the first report. If the reports are presented late they may not be accepted by the Sheriff and the whole procedure would require to be started all over again.

Once the reports are received the application must be completed and lodged in court with the  reports , in welfare cases the fee is exempt. The Sheriff will then grant a warrant to serve the application and reports on all family members noted on the form, the Office of Public Guardians and the relevant local authority. The warrant allows 21 days for objections. Thereafter  a hearing will have been assigned by the court at which time the Sheriff will decide on the length of the order and whether a Bond of Caution is required

A Bond of Caution when a guardian is appointed is an insurance policy to cover any risks that the guardian fails  to intromit properly with the adult’s affairs. The cost of such a policy can range from as little as £30 when the incapacitated adult has assets of no more than £5000 to £1000 when an adult has assets amounting to £450,001 up to £500,000.

Our firm has special expertise in this area of law, currently acting for individuals who are both financial and welfare guardians. If we can be of any assistance please do not hesitate to contact Neil Mackenzie njm@mitchells-roberton.co.uk

Strict Liability Law

In the courtyard of our newly refurbished office block at George House there are brand spanking new bicycle sheds. Perfect for an environmentally friendly building. The only thing wrong with the sheds is that to date they have not housed one single bike . Having recently visited Amsterdam and Copenhagen, cities awash with bicycles it saddens me that in Glasgow very few people cycle. However my disappointment is tempered by reality as like many others I possess a bike but would not consider using it in the city as I would feel unsafe and may be right to feel so. According to Transport Scotland 817 cyclists were injured on Scotland’s roads in 2011 and seven cyclists were tragically killed.

It was therefore with interest that I read an article in the May 2013 issue of the Journal of the Law Society of Scotland by Brenda Mitchell about a campaign launched by Cycle Law Scotland to change Scots civil law to introduce strict liability for the protection of cyclists and other vulnerable road users involved in traffic accidents.

The UK is one of only five European countries that do not currently have the law known as strict liability. Under strict liability law, motorists would be held responsible in the civil courts for all accidents involving cyclists unless they can prove they are not to blame. Likewise if a pedestrian is injured by a cyclist the cyclist is liable. By introducing this change, a hierarchy based on the vulnerability of road users would be created.

As Brenda Mitchell states in her article “The case for strict liability is clear. I believe that while the Scottish Government is increasingly encouraging more people to take up cycling, it must also provide adequate  legal protection for those venturing out on our roads. Strict liability in civil law is the proper approach for a mature, socially conscious nation, as it addresses the unacceptable human impact of the current system where injured cyclists or their families can expect to wait months or even years to receive compensation.”

Of course not everyone is in agreement. At the moment we are not a particularly cycle friendly nation. Some drivers consider cyclists a nuisance and undeserving of sympathy. Alan Douglas a motoring journalist and member of the Institute of Advanced Motorists said “ We all have equal responsibility and surely the person who should be held responsible for an accident is the one who causes it. This assumption that it is always the motorist at fault is absolutely breath-taking.”

However if the change in legislation helps re-orientate road users’ attitudes away from conflict to those of mutual respect as can be seen in the European countries already exercising a system of strict liability then I am all for it. I would love Scotland to be a cycling nation and if the introduction of such legislation can remove the fear of cycling by knowing motorists will respect a cyclist’s precariousness  then I for one will certainly be getting on my bike. The cycle sheds at George House may be in use after all.

For more advice related to strict liability law contact Mitchells Roberton Law Firm in Glasgow

I did it!

We currently welcome French student Melanie Goubet for a placement at our office. Below is a blog on her thoughts so far:-

“I am a 19 French student who study to become a personal assistant. As soon as I knew that my work placement could be done in a foreign country, I didn’t hesitate: I wanted to go in the United-Kingdom. Since I started to learn English I have always wanted to practise it and it has always been my favourite subject. Making an internship on a foreign country was for me a big opportunity and I knew I would really enjoy it.

And I do. Mitchells Roberton has offered me a placement and I was so exited to the idea to work in a law firm, moreover it is reputed to be a friendly firm. I can confirm it, every day when I wake up it’s a pleasure to go to work, and I know it will be a good day. Thanks to this internship I learned a lot, I can finally practise my English. I also realised that I would like to work in a law firm later, and that I would really love to come back in Glasgow which, for me, is a very nice city. Especially when it’s sunny…

I knew it would be really a change for me: first time that I took the plain, first time alone in an other country and it made me more responsible.  Nothing scares me now (except spiders).

Everything is different here. From people behaviour in the train to doggy bags! It’s also interesting to see that cars drive on the left and that the driver is sit on the right. To see seagulls in the city is quite diverting too. People have such an accent! Sometimes it’s hard for me but after all, it’s one of the customs here. I love to watch TV in English and to read English papers.

The time really flies, and 6 weeks is too short.”

Internet Privacy & The Snooper’s Charter

Following the tragic murder of Lee Rigby in Woolwich, Theresa May has again raised the possibility of the revival of the ‘Communications Data Bill’. In short the Bill would allow government agencies wide ranging powers to access your online communications and browsing history. The government back up the need for such powers by stating a case that terrorists are becoming more and more savvy when using internet communications to plan terror attacks. They argue that if they were able to monitor flagged suspects ‘online’ communications then they would be much more equipped to thwart a horrific attack such as the murder of Lee Rigby or potentially, an attack on a much larger scale.

While I don’t doubt the good intentions of this Bill, the systematic monitoring of every single website you visit, the video you’ve just watched on youtube or the contents of that personal email you have just sent to your loved one makes me feel uneasy and surely goes against what most people would regard a common civil liberty, the right to privacy.

Added to that a projected cost of nearly £2 billion to develop the retention system that would archive such data then surely this legislation is best left buried?

Either way it’s a debate that won’t go away and with more and more methods of communication being widely used it is something the government will undoubtedly need to address again in the future. Hopefully they do so in a way that satisfies our desire for stricter privacy unlike the Communications Data Bill.

A Night at The Citizens

I love the theatre. Mitchells Roberton kindly afforded me the chance to take my partner to the Citizens Theatre to see two plays by Caryl Churchill. This was my first time at the Citizens in about a year. The reception tonight was warmer than I remember, in part due to the rare appearance of the summer sunshine through the large glass ceiling.

The first play of the evening was entitled Far Away, a story set in a dystopian society, in three parts, each lasting around 15 minutes. Part one began as the large corrugated iron ‘curtain’ opens up to reveal a non-descript kitchen where two characters, an aunt and her niece, were speaking to one another. The atmosphere quickly darkens as the discussion alludes to the young niece’s discovery of her uncle’s apparent involvement in people trafficking. If this has you raising an eyebrow then part two, set in a hat making factory, is unlikely to reassure you. The two milliners in this scene are making hats for an upcoming parade: towards the end of this part there is a procession of anonymous prisoners, wearing the hats we have previously seen being made, walking towards the front of the stage. This scene is made even more sinister by subsequent reference to the ‘burning of the hats with the bodies’: I was left wondering if these prisoners could be the people who were being trafficked in part one. For me, part three was more baffling than the two preceding it. We are taken back to the same kitchen in which part one was set, where the characters speak about the ‘war’ and morality of the world, referring to different aspects of nature, from people to crocodiles to lazy grass. This intriguing play certainly stimulated some discussion during the interval: with almost everyone having different interpretations of what they had just seen.

After the interval, the chance to see Seagulls, a short play written some twenty five years earlier than Far Away. Seagulls, a more linear play, concerned one woman’s brush with the supernatural, a gift she has always had but only recently revealed to the world – her ability to move things with her mind. The play is set as this lady is making a public appearance to showcase her gift before she heads off to Harvard to become involved in scientific research. We see her interacting with her biggest fan, a strange young man. As their discussion ambled through her past, I got an insight into how she felt about her ‘gift’ and we learnt how it is that this power has been revealed to the world. As the story moves on, there is an uncomfortable wait as we see the lady standing in front of the audience attempting to use her abilities to entertain the gathered crowd but, alas, her powers appear to have deserted her.

I will stop here, as I do not want to reveal too much about what happened in the plays  – I would definitely recommend that you go and see them for yourself. Irrespective of what you take away from these plays, both certainly entertained and intrigued me. A thoroughly enjoyable evening!

Commonwealth Games Trading Regulations

Unauthorised street trading, advertising, ambush marketing and busking at 17 Commonwealth Games venues will be banned under regulations published by  the Scottish Government on the 16/5/2013 for consultation.

The rules will apply before and during sporting events at next year’s Commonwealth Games . Anyone involved in unauthorised trading or advertising will be liable to have merchandise seized or be fined up to £20,000 if convicted. The Consultation sets out a plan of action for the controls, detailed plans of the areas affected and the length of time that the restrictions will last. Enforcement will be by designated and experienced officers drawn from local authorities and appointed by Glasgow 2014.

Commonwealth Games Minister Shona Robison said :

“ Regulating trading and advertising in the vicinity of the sports arenas ensures that we can protect the character and integrity of the Commonwealth Games and minimise disruption to local people or businesses. These regulations will allow Glasgow 2014 to control activity at an appropriate scale that allows the free flow of spectators and traffic to and from the Games venues.”

Law is not boring…

I do not think law is boring. It covers everything from embryo to exhumation. It regulates the air we breathe, the food and drink we consume, our employment , education , health and  property . But if I were to refer you to Section 19 of The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2011 you may be forgiven for believing law dull.

But this little piece of legislation is extremely important and essential for the protection of the beloved corncrake now probably only found on the Western Isles of Scotland and Orkney. The corncrake is a brown streaked bird with bright chestnut wings , a short deep bill and strong legs and feet ,ideal for thrusting through tall vegetation where they live. In fact corncrakes are reluctant to emerge from the rough vegetation and so are more often heard than seen, the male singing with a distinctive rasp used to attract females. The bird is a summer visitor to Scotland between April and September thereafter migrating to central and southern Africa in winter.

Over a hundred years ago corncrakes were common in Britain but there are now only a few left. This is due to modern farming methods destroying nesting sites and killing chicks and also adult birds. The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2011 sets out conservation schemes which pay farmers  to manage land in a corncrake friendly way.

There are encouraging signs that the number of corncrakes in Britain are slowly now increasing. Legislative measures have saved corncrakes from being an endangered species.

Isn’t law wonderful !