Guardianship – What does it mean and what do i need to do?
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 are discussing here the guardianship of adults, often referred to as adults with incapacity. Here we will explain what being a guardian really means, when it is necessary and what is involved in the process.
What is Guardianship?
When someone is unable to make important decisions for themselves because of temporary or long term health issues, such as dementia, autism or a learning disability someone else will need to help make their decisions for them. This normally means that the individual ‘lacks capacity’, and requires someone to make a Guardianship Order. The person appointed will be known as the ‘Guardian’, and will have responsibility to make personal, health and / or financial decisions on behalf of the individual.
When does a person lack Capacity?
This is a difficult question to answer as capacity is not black and white. Capacity needs to be judged on an individual basis rather than being categorised according to diagnosis. For example, just because a person has a learning disability, does not necessarily mean that they cannot understand and make some decisions for themselves. The law attempts to define capacity but how useful this is in practice is debatable. Generally as a carer you know whether someone has capacity or not. As solicitors if we are in doubt we would consult with a GP or Consultant.
What is a Guardianship Order?
A Guardianship Order is a court appointment which authorises a authorising someone to take action or make decisions on behalf of an individual who lacks capacity. A Guardianship Order can be in relation to property and financial matters, personal welfare or a combination of these. Guardianship is likely to be suitable where the adult has long-term needs and can be applied for when a person is over the age of 16. For young adults about to reach the age of 16, a guardianship application should be instructed at least 6 months before the 16th birthday.
What Powers can be applied for?
The application for Guardianship will say which powers the Guardian wishes to have. The Sheriff then decides whether or not to grant the powers. Typical financial powers may be to manage bank accounts, sell property or to receive and manage self-directed support. Typical welfare powers include deciding where the individual should live, arranging a suitable care plan, taking the individual on holiday or consenting to/refusing medical treatment.
Who can apply to be a Guardian?
In most cases, a family member or a friend applies to become a person’s Guardian. Alternatively, someone acting in a professional capacity such as a solicitor or accountant can apply. The Local Authority can be appointed where there is no one else to be a Guardian. An application can be made to appoint more than one guardian and / or substitute Guardians.
How do I apply for Guardianship?
When making plans for vulnerable people it is important to take advice from a solicitor who specialises in this area of law and who has experience of clients with disability or illness. Your solicitor will draft an application to the Sheriff Court listing the powers you are looking for, why Guardianship is appropriate and details on the proposed Guardians. Your solicitor will also deal with obtaining the reports that need to be sent to the Sheriff Court with the application. Two of these are medical reports, assessing the capacity of the individual in relation to the powers requested. The third is a report on the suitability of the proposed Guardian. Your solicitor will then go to Court on your behalf and present your case as to why you are applying for Guardianship. After the Order is granted your solicitor will ensure that the Order is registered with the Public Guardian and that you understand what your role as Guardian involves.
When is Guardianship necessary?
The only circumstance in which an adult will require a guardian to be appointed 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. This can apply to Adults who have had capacity and then lost it for example through illness, or young adults who have reached the age of 16 and their parents or carers require an order to continue to protect their interests going forward.
What does it mean to be incapable?
The Adults with Incapacity (Scotland) Act 2000 is the legislation that we need to look to understand legally when an adult is deemed not to have capacity.
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, accident or injury such as stroke. A person can be born with a disability which, upon turning 16 years old, deems them to be an incapable adult. Incapability is assessed by medical professionals, independent solicitors, social work and mental health officers, and means that the adult is unable to make decisions in relation to their welfare or finances.
Who can become a guardian?
Any person who has an interest in the adults life 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. The court will always look to implement the least restrictive way in which to manage the adults affairs. This is because the court recognises that even if an adult does not have capacity, this does not remove the rights which they have.
The Court must also be satisfied that granting the Guardianship Order will benefit the adult. It is very important to consider what aspects of the adult’s affairs that you as a guardian wish to manage. Within the application, it must be specified if you are seeking welfare powers and/or financial powers.
Welfare Guardian and/or Financial Guardian
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 sought when the adult has significant financial matters that require to be managed on their behalf or require self directed support to be put in place to provide a care package for the adult. This will include, for example, dealing with any property they own, or managing any investments or stocks and shares. Financial guardianship will not normally 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 to be managed, the adult’s finances can possibly be managed through different means rather than through financial guardianship powers. These include an Intervention Order, an Access to Funds or Benefit Appointeeship.
Once it is established which powers you seek in relation to the adult, you can begin your application to the Court for guardianship powers.
What is the Guardianship Application process?
The application process to become someone’s guardian, whilst often straightforward, can be lengthy and emotional.
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. There can be significant delays in these reports being prepared due to a lack of Mental Health Officers in some council areas and this can lengthen the process.
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. We can discuss this further with you and your options.
Why Caritas Legal?
If someone you know loses their capacity, you must act quickly if you wish to be able to act on their behalf. Similarly, if your child has a disability or has been diagnosed with a condition which limits capacity, then you should make plans in good time to take advice and apply for guardianship for your child in order that there is no gap in provision of care and decision making ability. Obtaining Guardianship powers can be a lengthy process and can be stressful and complicated to understand. We have extensive experience in the guardianship process. We can discuss your options fully with you, including which orders and powers may be most appropriate in your loved one’s specific circumstance. We appreciate that every family and adults situation is different, and we tailor our advice in a clear, understanding way.
Please contact us today on 01383 431 101 for further information and to arrange your appointment with one of our expert solicitors.