Updated Guardianship Practices During COVID-19: The Way Forward?
Since the outbreak o
f COVID-19, everyone has had to adapt and so it is not surprising that guardianship application practices have also had to evolve to take account of the widespread restrictions.
During the first national lockdown, our Courts closed and guardianship applications ground to a sudden halt. To ensure vulnerable adults wouldn’t be left without individuals to act for them, the Government introduced legislation known as the “Stop the Clock” provisions. Whilst these provisions were in force, existing guardianship orders remained effective with the expiry date effectively being paused for the meantime. The provisions aimed to address the potential expiry of guardianship orders before guardians were able to lodge a renewal application at Court. Interestingly, the clock was stopped on all existing guardianship orders in place, not just those which would expire during the lockdown measures. The clock was stopped from 7th April 2020 up to and including 29th September 2020, totalling 176 calendar days. As such, in calculating the amended expiry date of orders, 176 days require to be added to the original expiry date of all guardianship orders in existence at the time the provisions came into force.
Once the measures started to ease and the courts resumed semi-normal business, various new measures and practices were introduced to allow guardianship/renewal applications to progress as smoothly and safely as possible.
Across the country, videocall meetings with clients soon became the norm and remain an effective and accessible manner of meeting with clients during these unprecedented times. The Legal Aid Board began to accept applications once again and whilst there was perhaps an initial backlog to be worked through, these applications are now being dealt with in a relatively timely manner. Additionally, whilst the restrictions are ongoing, the Legal Aid Board will accept the Legal Aid Mandate without a client’s wet signature on the document.
With the ongoing restrictions posing some initial issues with having the required reports completed, the Mental Health Officers and doctors have now, for the most part, turned to completing their reports electronically, via videocall/telephone calls. Across the board, these have been widely accepted by the Courts. As with the reports, electronic submission of papers has also been generally accepted across the Scottish Courts, with hard copy applications actually being rejected in some jurisdictions. Some of the central belt Courts have insisted on initial hard copy submission and if this fails, have accepted electronic submission. The Courts have also generally been quite accepting of electronic signatures at this time.
Warrants by the Court have been granted in a reasonably timely manner, containing some amended wording regarding the manner in which hearings are to be conducted (i.e. via conference/video call) and timeframes for notification of interested parties wishing to attend these hearings. On the whole, hearings have been set within a reasonable timeframe of the Warrant being granted and initial COVID-19 backlogs have now been cleared. In respect of service of papers, there have been varying requirements throughout Scotland, with some Courts allowing electronic service but others still requiring the usual Recorded Delivery postal service on parties and submission of Certificate of Service with recorded delivery slips/receipts to the Court. It is not yet clear whether electronic services will be more widely adopted as the restrictions are lifted across the country.
In many jurisdictions, particularly in the central belt of Scotland, Sheriffs have been dispensing with hearings altogether and requesting written submissions instead. These are then considered by the Sheriff and we often hear a couple of days later as to their decision. In other cases, Sheriffs have insisted on conference call hearings, much like the normal Court hearings. In instances where Caution has been ordered by the Court, we have been able to arrange this entirely electronically.
The Office of the Public Guardian has also recently introduced a further measure for lay financial guardians, which came into force from 29th March 2021. Proposed guardians will now be required to complete a detailed form to ensure they are fully aware of the role and responsibilities they will be taking on as a financial guardian, prior to the application being lodged with the Court. This is required to be completed at the outset of the application process and is to be sent to the Office of the Public Guardian as part of their intimation.
These adapted practices have allowed us to continue progressing existing and taking on new guardianship matters. The legal sector has taken leaps and bounds with its acceptance of these updated and contemporary practices. Whilst these have of course been unprecedented times and the legal sector has adapted out of necessity, we are all hoping the implemented changes remain accepted practices going forward.
Whilst our offices remain closed for the time being, our Private Client team remains hard at work and would be more than happy to assist with any questions or queries you may have regarding your personal affairs. I do hope this can provide you with some peace of mind and clarity in such uncertain times. I am certain that if we all continue to work together during these trying times, we will soon be able to return to normality. Please stay safe and take care.
For help and advice, please get in touch with Blackadders’ Private Client Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth, and across Scotland.
Emma Grunenberg, Trainee Solicitor