Guardians: don't look to the Fund

Solicitors appointed guardians under the Adults with Incapacity (Scotland) Act 2000 should obtain caution rather than rely on the Guarantee Fund as cover for dishonesty, according to a recent judgment.

Ruling on the renewal of a guardianship on 23 April 2009, Sir Stephen Young, Sheriff Principal of Grampian, Highland & Islands, found that it was unsafe for solicitors to rely on the Guarantee Fund as adequate protection in such circumstances.

Sir Stephen said: “Only an order to find caution or give some other security under s 58(6) of the Act will offer the unqualified assurance that I believe is required in this situation.”

The ruling follows discussions by the Society’s Guarantee Fund Committee, which was concerned that some sheriffs were refusing to order caution. The committee found that difficulties could arise if there was doubt whether a solicitor was acting as guardian in the course of his or her practice, or in a personal capacity. The committee concluded that the Guarantee Fund, which is discretionary, might make a grant but a bond of caution would provide more protection for a firm.

The case reference is AW8/08. The judgment is available on the Scottish Courts website.