Have you been advised to seek guardianship powers on behalf of someone? Our latest blog offers detailed information on this important topic. Whether you want to learn about guardianship orders, understand who may lose capacity and require guardianship, or read about others’ experiences with joint guardianship, our blog provides valuable insights. Additionally, if you are seeking legal advice or would like guidance on the process, our blog is a helpful resource.
Table of Contents
- About guardianship orders
- Losing capacity
- Case study
- Seek legal advice
- Frequently asked questions
About guardianship orders in Scotland
Guardianships are often considered to be something only required in relation to the elderly.
In fact, the majority of people do not even know that they exist until they find out a member of their family has lost capacity and is no longer able to make decisions for themselves relating to their own finance and wellbeing.
Usually, at this point, people regret not getting a power of attorney in place, however by the time capacity has been lost, it is too late, and you are reliant on the court bestowing upon someone the power to make decisions in relation to a person’s finance and wellbeing.
However, this stereotype of being a legal service for the elderly misses out a large portion of the population who still come to rely on it.
Losing capacity
People can lose capacity at any age, and for a variety of reasons. This could be a young person due to an accident that has caused some form of brain trauma for example. More often is an individual born with a condition that results in them never having achieved a position of having full capacity to make complex decisions over their finances and wellbeing when they reach adulthood and can no longer rely on a parent exercising their parental rights and responsibilities to make those decisions in their best interests.
Often, the application for Guardianship is a straightforward process and one parent or caregiver can apply to be named as a guardian for the young adult, or alternatively, both parents can apply to be made joint guardians, with each of them holding power to make decisions for the young adult.
This situation, however, becomes more complicated if the parents have separated in a potentially acrimonious way, and cannot communicate well with each other to act in their child’s best interests.
Recently Steven Bain, Senior Solicitor within our Family Law department advised a client which resulted in a joint guardianship agreement. Here is the case study:
Case study
The Sheriff Appeal Court has ruled that a sheriff who awarded sole guardianship of a 24-year-old man with autism to his mother without a proof hearing should have ordered one before making a decision.
Colin Boyle, the father of the adult “Andrew” appealed against the order granted in favour of Andrew’s mother Molly Denton on the basis that a proof ought to have been fixed, and that the sheriff’s decision did not contain satisfactory reasoning. The appellant, who moved to Ireland following the parties’ separation, had changed his position over the course of proceedings to seek joint guardianship of his son.
The appeal was heard by Sheriff Principal Aisha Anwar, with Appeal Sheriffs Fiona Tait and Brian Mohan. D Anderson, advocate, appeared for the appellant and Leighton, advocate, for the respondent.
This case explored exactly that scenario whereby the parents of the young adult had separated, and communication between them remained extremely strained. This also showed itself in the form of differing opinions on what was best for their son.
One parent applied to become the adult’s guardian solely, and the other parent contested this. The Court employed the use of a Safeguarder to review the position and investigate what they felt would be in the best interests of the adult and report back to the Court.
The findings of the Safeguarder were contested by one party who wished to lead evidence on the points raised by the Safeguarder and presented to the Court, however, a Sheriff decided it was within their power to make a decision on the spot with regards to what was best for the adult.
That Sheriffs decision was successfully appealed.
Overall, Guardianship orders in Scotland ensure the welfare and finances of an individual are properly looked after if they are unable to manage them themselves. This can become complicated if you have separated and would like joint guardianship. If you’re looking for some legal advice around guardianship our skilled family lawyers can help.
Frequently asked questions
How long does the guardianship process take in Scotland?
A guardianship process can take anywhere from six months to a year.
How long does a guardianship order last?
It is typically granted for around three years. However, the sheriff will decide on what is best suited based on the individual’s certain circumstances.
What are the different types of guardianship?
- Welfare Guardians: If you apply for this type of guardianship, you will be able to make personal welfare decisions on behalf of the individual. This includes things such as healthcare, ensuring their well-being and quality of life is well looked after. If you become a welfare guardian then your main responsibility is to prioritise the individual’s personal welfare.
- Financial Guardians: A financial guardianship place allows you to manage the individuals’ financial affairs. This includes handling their bills, property and financial matters.
- Combined: You can also apply for both welfare and financial guardianship.
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Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
