Guardianship Orders for Adults with Incapacity

What is a guardianship order?

A guardianship order is an order made by the court when an Adult is deemed to lack capacity.

Why is a guardianship order needed?

A guardianship order allows a 3rd party, usually a close family member, friend or the local authority to take welfare and/or financial decisions in respect of an Adult who lacks capacity.

What is the difference between power of attorney and guardianship?

Power of Attorney is granted by the Adult and can only be put in place by an Adult who has capacity. If an adult lacks capacity, for example having been diagnosed with dementia, learning disability or having been in an accident, then they cannot grant a power of attorney and so an order would require to be sought from the court.

What are a guardian’s responsibilities?

This depends on the type of guardianship which is in place.

Welfare 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 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, Access to Funds or Benefit Appointeeship.

A financial and welfare guardianship order can also be sought if both types of powers are required.

Once it is established which powers you seek in relation to the adult, you can begin your application to the Court for guardianship powers.

Who can apply to be a guardian?

Usually the person applying to be a guardian will be a family member, close friend or the local authority within which the Adult usually resides.

Sometimes the local authority may seek to have joint powers with a guardian, or have specific joint powers with the guardian.

The proposed guardian has to provide confirmation to the court that they have never been formally barred from working with children or vulnerable adults or convicted of a criminal offence in Scotland or elsewhere.  If seeking to be appointed as financial guardians they must also provide confirmation that are not or have ever been sequestrated or been made subject to a bankruptcy restriction order, (2) have ever signed a trust deed for creditors, (3) are or have ever been subject to or applied for a debt payment programme, (4) are or have ever been subject to an order pursuant to the Company Directors Disqualifications Act 1986, (5) are or have ever  been subject to an inhibition or arrestment, or have been made subject to any similar order or taken such similar steps in Scotland or elsewhere.   If any of these conditions do apply to a prospective guardian, they should discuss this immediately with the solicitor they have instructed who will be able to advise whether it is appropriate to pursue a guardianship order.

The guardianship Process

Applying for Guardianship of a Parent

Provide step-by-step guidance on how to declare an adult as incapacitated and how to register for guardianship. [The steps below are for guidance purposes and should be adapted in accordance to Caritas Legal’s suggestion]

Step 1: Declare the adult as incapacitated

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. Often by the point of applying fort guardianship incapacity will have been determined by a medical professional involved in the Adults care.

Step 2: Civil Aid application

For welfare or welfare and financial guardianship (combined), non means tested legal aid is available for court proceedings. If the guardianship  sought is for financial powers only this is means tested on the adults finances and therefore the adult may not be eligible for legal aid dependent upon their financial situation. Call our office to discuss the fees involved and the process in respect of legal aid.

Step 3: Funding in Place

Once funding is in place, whether legal aid or privately funded, a summary application will be drafted, This is the document that will eventually go to the court asking the court to grant powers in favour of the guardian. It sets out the background and explains to the court why the application is necessary, and why the particular powers are sought. The intention to apply for the order is intimated to the local authority and the adult is placed in a queue to be assessed by a mental health officer who will prepare a report assessing the guardians suitability and confirm their view as to capacity of the Adult. This report is a requisite of all guardianship applications.

Step 4: Medical Reports

For an initial guardianship application, two medial reports are required, from a consultant psychiatrist or qualified medical practitioner such as the adults GP. These confirm the adult does not have capacity and details the medial practitioners interaction with the Adult. For a renewal application, one report is required along with the Mental Health officers report.

Step 5: Court Application

The summary application is sent to the court along with the Mental Health officers report and  the two medical reports. These reports must be prepared within 21 days of one another and lodged at the court. This time restriction is applied stringently by the court and only in very limited circumstances would reports outwith this time period be accepted.

Step 6: Application Hearing

A hearing is fixed and the proposed guardians solicitor will serve the court papers on all interested parties. They can attend the hearing or make representations to the court in advance of the hearing.

Step 7: Grant of order

Your solicitor will appear at the hearing and ask the court to grand the order. Sometimes the court may want more information, particularly if the application is opposed or any concerns are raised in the MHO report, and an independent person known as a safeguarder may be appointed to carry out enquiries and provide a report to the court.

If the court is satisfied the orders sought are necessary and in the adults best interests, the court will grant the orders for a period of time. The court has discretion as to how long they will grant the order for but it should be noted that it is no longer consider human rights compliant to grant indefinite orders and the court is highly unlikely to do so. This means that the guardians will require to apply to the court to renew the order in place after a certain period of time. We always strongly suggest commencing the process around 10 months prior to the expiry of the order as there can be lengthy wait times to have a mental health officer allocated to the Adults case.

Contact us today to discuss the application process and how we can assist in making this as straightforward as possible for you – or call us on 01383 431 101.

How long does a guardianship order last?

Upon the first application the court usually will grant an order for a period of three years. This is the statutory length recommended in the Adults with Incapacity (Scotland) Act 2000.However the court has discretion to make any length of order and this will be dependent upon the adults specific circumstances. When the order is renewed towards the end of the initial appointment, usually the court is more open to considering a longer order provided the guardian has carried out the role of guardian appropriately. However the court very rarely will make an indefinite order as it is not deemed to be human rights compliant to do so and the regular renewals process ensures that there is a further safeguard in place for adults with incapacity.

How much does a guardianship order for an adult cost?

This is dependent on the adults specific financial situation. Please see our fees page for more information or call our office to discuss.

Can a guardianship order be revoked?

Yes, and the reasons for this can vary. If there is concern that a guardian is abusing their position then the office of the public guardian can ask the court to remove the guardian. If the guardian is unable to carry on in the role, they can also ask the court to remove them as guardian/ terminate the order. This is not an exhaustive list. If you are concerned regarding an order in place, please call our office to discuss.

Contact us today to commence your application for guardianship., We provide straightforward, empathetic advice during what we understand can be a stressful and difficult time – or call us on 01383 431 101.

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