Paisley sheriff orders none of 95-year-old woman’s feuding daughters should be made nearest relative in welfare guardianship dispute

About this case:

• Citation:
  [2022] SC PAI 24
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Mohan

An undisputed application for welfare guardianship over the adult HS, aged 95, was made by Renfrewshire Council. All three of her daughters, JM, LM, and KG, all in their 50s or 60s, consented to the making of the order, however they were in conflict over aspects of their mother’s care.

The case was heard by Sheriff Brian Mohan in Paisley Sheriff Court. The council was represented by Panton, solicitor, with representations also made by the first and second interested parties LM and KG. JM, the eldest daughter, did not participate but signed a letter in support of LM being appointed nearest relative.

Significant rift

Until 2021, HS lived in sheltered accommodation in a town in Renfrewshire. During lockdown she was regularly visited by her younger daughters LM and KG, but JM began shielding or was otherwise indisposed due to her own health difficulties. HS later developed dementia and cognitive impairment and it was accepted that a guardianship application would be necessary.

The three daughters initially sought to be joint guardians under the 2000 Act. However, an assessment by the Mental Health officer concluded that they would be unable to work together due to a significant rift between them. It was acknowledged by LM that the dispute between her and KG had been ongoing for some eight years and was unlikely to improve.

It was later agreed that Renfrewshire Council’s chief social work officer would be appointed as welfare guardian. An application was made by LM to be appointed as HS’s nearest relative due to the illness of JM preventing her from effectively participating in decision making.

The submission of the council was that the court should make no order, leaving JM as the nearest relative, or order that no one should be regarded as the nearest relative. This would prevent LM and KG, whose conflict was obvious, from engaging in a form of one-upmanship and prevent obstruction to any decision being made for the benefit of HS. The dynamic between the sisters was such that social work and care home staff were put under significant pressure by their competing demands.

it was submitted for LM that, while she did not have good relations with KG, if no-one held the role of nearest relative the local authority would respond to the daughter who was “shouting loudest” at any given time. KG’s position was that no-one should be regarded as the nearest relative as to allow one of them to have the opportunity to oppose decisions made by professionals would lead to further problems.

Sorry state of affairs

In his decision, Sheriff Mohan observed: “It was clear from [the MHO’s] reports that the conflict between the sisters had not just begun during the difficult period when their mother’s independence and capacity deteriorated. Whatever its root cause, the conflict was more longstanding, and had become apparent to other professionals dealing with the Adult well before the application for guardianship was made.”

He continued: “The dispute has taken priority over the need to communicate with each other and agree a common plan for the Adult’s care. Indeed it was apparent that, notwithstanding the stark observations in the MHO’s report – with each of the sisters having had an opportunity to reflect on the views of the various independent professionals about the problems being caused by their fractious relationship – the dispute has not abated.”

Noting that the feud has spilled over into everyday decisions, the sheriff said: “This sorry state of affairs has left me to conclude that to have any of the sisters in the role of nearest relative presents risks to the wellbeing of the Adult. Given the poor relations between the Adult’s children, it is simply not workable to have one of them as the single point of contact for the Adult’s family.”

Explaining why he would not keep JM as the nearest relative, he went on to say: “Leaving JM as the nearest relative because she is the oldest carries the real risk that KG – who visits her mother regularly - will be left ‘out of the loop’ by her sisters, and that she will seek to obtain information independently from the social work and care home. This is likely to lead to more stress in the relationship between the siblings, more public venting of the family’s disagreements, and a duplication in the work of care home staff and social work.”

Sheriff Mohan concluded: “It is not appropriate that either the care home where the Adult resides, or the social work department which carries out the duties of welfare guardian, should be used as a platform for the Adult’s daughters to continue to air their mutual grievances. Neither the passage of time, the deterioration in their mother’s capacity, nor even the observations of numerous professionals about the impact which their dispute is having on the arrangements surrounding their mother’s care, has enabled the sisters to put aside their differences.”

The sheriff therefore decided that no person should exercise the functions of the nearest relative during the period of the guardianship order.