Do you know what it means to become someone’s guardian? You may have heard the term guardianship or guardian and been unaware what this means. We have written this blog to explain what being a guardian really means, when it is necessary and what is involved.
First, it is important to point out that in this article we discuss the guardianship of adults. Some people mistake guardianship of children for that of adults. There is a possibility in legislation for a child’s parent to appoint another person to be their child’s guardian in the event of their death. However, the purpose of this article is to discuss the guardianship of adults (i.e. persons over the age of 16).
The only circumstance in which an adult will have a guardian is when the adult has lost capacity and, prior to losing their capacity, did not grant a power of attorney. In these cases, the Court will grant a Guardianship Order granting someone powers to make decisions on behalf of the incapable adult in relation to their welfare and/or their finances and property. A Guardianship Order will be appropriate when an adult is unable to properly manage their affairs owing to their incapacity.
The Adults with Incapacity (Scotland) Act 2000 is the legislation that comes into play where an incapable adult is involved. This Act contains the definition of an incapable adult whereby if the adult cannot act, make decisions, communicate decisions, understand decisions or retain the memory of decisions, they are incapable. Incapacity can stem from mental disorders such as dementia or Alzheimer’s disease, or physical illness or injury such as stroke. A person can be born with a mental disability which, upon turning 16 years old, deems them to be an incapable adult. Incapability is assessed by medical professionals, social work and mental health officers, and means that the adult is unable to make decisions in relation to their welfare or finances.
Any person who has an interest in the adult can become their guardian. More than one person can apply, whereby joint guardians can be appointed to the adult. It is recommended, but not necessary that, in single guardianship applications, a substitute guardian is nominated. This nominee would replace the guardian if they could no longer act on the adult’s behalf.
It is important to know that the Court will only grant a Guardianship order if it considers that there are no other means available to manage that adult’s affairs. Additionally, the Court must be satisfied that granting the Guardianship Order will benefit the adult. It is therefore important to consider what aspects of the adult’s affairs you wish to manage. Within the application, it must be specified if you are seeking welfare powers and/or financial powers.
Welfare guardianship powers are the most commonly sought. These powers allow the guardian to decide, for example, where the adult should live, consent to medical treatment on their behalf, and make day-to-day decisions relative to their care. In most cases, when no power of attorney exists in respect of the adult, welfare guardianship powers will be necessary and will benefit the adult.
Financial guardianship powers are typically only sought when the adult has significant financial matters that require to be managed on their behalf. This will include, for example, dealing with any property they own, or managing any investments or stocks and shares. Financial guardianship will not be necessary when the adult’s finances are simple. For example, if the adult doesn’t own any property, or doesn’t hold significant assets that require managing. In these circumstances, the adult’s finances can be easily managed through different means rather than through financial guardianship powers. These include an Intervention Order, an Access to Funds or Benefit Appointeeship. Our family law solicitors can advise you in relation to each of these and help you decide how best to manage the adult’s finances.
Once it is established which powers you seek in relation to the adult, you can begin your application to the Court for guardianship powers.
The application process to become someone’s guardian, whilst often straightforward, can be lengthy and emotional. Our family solicitors have years of experience dealing with guardianship applications and can advise and guide you through the process.
The Application must be made to the Court in the form of a Summary Application. These are the court papers which set out the powers you seek in respect of the adult and why these powers are necessary and will benefit the adult. This Application must be accompanied by three medical reports conducted on the adult: a GP report, a psychiatric report and a mental health officer’s report. Once the Summary Application and the Reports are lodged at Court, a warrant will be issued. This warrant allows the Summary Application to be served on the different persons interested in the guardianship application. There will then be a period of 21 days in which anyone wishing to oppose the guardianship can do so.
After the period of 21 days, a Hearing is assigned. At this Hearing, if the Sheriff considers that the order is necessary and will benefit the adult, the sheriff will decide to grant the Guardianship Order.
It is unknown to many that there is Legal Aid Funding available for Guardianship Applications. Whilst Civil Legal Aid for welfare guardianship is not means-tested at all and is virtually automatic, Advice and Assistance is means-tested on the adult’s finances. This means that there could be a charge for initial work carried out up until the point of Civil Legal Aid. The charge of this, however, can be recovered from the adult’s estate. Our can advise whether or not Advice and Assistance legal aid would be available in your case.
If someone you know loses their capacity, you must act quickly if you wish to be able to act on their behalf. Obtaining Guardianship powers can be a lengthy process and can be stressful and complicated to understand. Get in contact with our Family Law Team today and make an appointment to speak to one of our experts about Guardianship powers.
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