EF and JF, Re

On 11 January 2008 , I granted an application by the above to be appointed both welfare and financial guardians of their uncle, a gentleman of 85 years. He still resides in his own home, with support, but in the recognition that that may not be sustainable in the near future, power is required to sell his dwelling house, with all that is entailed in authorising the sale of a house by persons other than the owner.

For the avoidance of doubt, all of the criteria of the Act were satisfied in this case, and the adult had an extended family with whom he had always had the closest of relationships. It was clear that the applicants (and other members of his extended family) had actively supported the adult for years in a relationship of complete mutual respect and trust. They were manifestly suited for appointment as guardians. The value of the adult's estate, including his house, was �520,000 and I required to fix caution in that sum, to be found within 12 weeks.

When I say I "required" to do so, I explain that at the time of granting the application, and even at the time of writing, that is a mandatory requirement under the Act, and can be dispensed with only if the guardians are unable to find it but are otherwise suitable. Even if it were not, and I had discretion, (and such a provision will come into force at some time), I would not have exercised that discretion in this case. An estate of that size being administered by other persons ought to be protected by insurance.

I also point out that the extended period of 12 weeks fixed to find caution is to allow for the routine inordinate and unexplained delays which insurance companies take to process these applications.

At the time I did so, I had just published an opinion ( RL AW114/07 - Scottish Courts Website 28 December 2007) which dealt with the problems in dealing with insurance companies which are being encountered by those who are trying to operate this Act in accordance with the plain intention of Parliament. I said then that while I accepted that insurance is a risk based business, the attitude of the insurers was subverting the intention of Parliament. I advised the solicitors acting in the present case of the potential difficulty they would encounter in obtaining caution for their clients.