A Guardianship Order is a court order which if granted, appoints a person to make decisions for an adult who lacks capacity and is therefore incapable of granting a Power of Attorney.

What is incapacity?

Incapacity can be by reason of mental disorder such as dementia or Alzheimer’s disease. It can also be caused by physical impairment, such as a stroke, which makes the adult unable to manage their affairs.

The law says that an adult legally lacks capacity when there is evidence that he or she is unable to:

• act
• make a decision based on the information given
• communicate the decision
• understand the information relevant to the decision
• retain the memory of the decision

Types of Guardianship Order

The Order itself will contain the powers that the Guardian will have, which may be financial or welfare powers, or both and will be granted for a set period of time.

Financial powers

Examples of financial powers might include the ability to operate the person’s bank accounts, prepare tax returns and buy or sell property on the person’s behalf.

Welfare powers

Examples of welfare powers grant authority to look after the health and wellbeing of the adult and can include deciding on care arrangements and consenting to medical treatment.

Why apply for Guardianship?

Guardianship Orders may be suitable in many situations.  For example, if you are the parent to a young adult who lacks capacity, a Guardianship Order can be used to help you manage their financial affairs.

Who can apply to be a Guardian?

A Guardianship Order can be sought by anyone who has an interest in the adult.  This covers not only family members but also friends of the adult.

Strictly speaking, anyone who themselves holds legal capacity and has attained the age of 16 can apply to become a Guardian.  The question as to whether that person is or is likely in the Court’s opinion to be a suitable Guardian is a matter entirely within the discretion of the Court.  In reaching its decision on whether to grant the Guardianship Order, the Court will give regard to the views and recommendations of the local Social Work Department, the views of other relatives and all other evidence presented before it.

Guardianship can be applied for by more than one person as joint Guardians.  This can be useful as it allows tasks to be shared among, for example, different family members.  A Sheriff will only usually appoint family members as joint Guardians.

A substitute Guardian can be nominated when making the application.  The substitute would replace the primary Guardian if they were ever unable to continue to act themselves though their own incapacity or death.  It is also possible to apply for someone else to become a joint or substitute Guardian at a later stage.

A local authority may also apply for a Guardianship Order.  This would be done after the authority has assessed the needs of the adult and considers a Guardianship Order necessary.  They will then apply for an order if there is no one else to do so.

Am I eligible for Legal Aid?

Civil Legal Aid is generally available when welfare powers are requested and may in some instances be available when the adult has limited financial assets and capital.  We can advise in respect of all aspects of eligibility for legal aid and our private fees.

Applying for Guardianship

Generally speaking, it can take anywhere between 6 to 12 months to obtain a Guardianship Order.  There are often delays in the Council allocating a Mental Health Officer to compile a report on the application.

The process for obtaining a Guardianship Order can very often be complex so it is therefore highly recommended that legal advice is sought.   We are experienced in making applications to the Sheriff and shall obtain the required reports for you, formally intimate the papers and conduct the court hearing on your behalf.  We can also advise on the general obligations and actions required of a Guardian and simplify the procedure for you.

What happens after the Guardianship Appointment?

Once the sheriff has granted the Guardianship Order, the Office of the Public Guardian (OPG) will notify the Adult and the relevant local authority, registering the Guardianship and issuing a Certificate of Appointment.

It is then the Guardian’s responsibility to ensure that all of the interested parties have been informed of the Order.  This includes notifying family members and care workers, if there are any financial powers conferred, the Guardian must then inform the relevant Banks and building societies.

In cases where there are financial powers conferred to the Guardian, the Guardian will require to provide the OPG with an inventory of the Adult’s estate and a management plan and to prepare and submit annual accounts.   The OPG will ensure that a financial Guardian is exercising their powers responsibly through providing every financial Guardian with a case worker.

To make an appointment with our lawyers based in Alloa and Falkirk, call us today on 01324 622 888 or complete our online enquiry form and let us see how we can help you.