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.

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