Guardianship Update

As a result of the covid-19 pandemic, legislation was brought in which effectively “stopped the clock” on guardianships. This was to allow the office of the public guardian, and those who are guardians, sufficient time to progress applications, whilst also alleviating pressure on the health service and the court service. Unfortunately, as a direct result of the covid-19 pandemic, health professionals and mental health officers were largely unable to complete the necessary reports within the required time frames as set out by the Adults With Incapacity (Scotland) Act 2000.

The Scottish Government has now updated its ‘Coronavirus: adults with incapacity guidance’, clarifying that the clock stopped on all guardianships that were in existence when the provisions came into force (between 7 April 2020 and 29th September 2020 inclusive), and not only on those which would have expired during that period. Therefore 176 days should be added to the expiry date of any guardianship order active during this period. Please see below for further information as to what this means in practice.

Suspension of guardianship provisions
The guardianship provisions came into force the day on the 7 April 2020. At that point the courts were only hearing urgent interim guardianship cases, the Office of the Public Guardian had a minimal amount of staff available and there were less doctors, mental health officers and solicitors available to complete the documentation required for guardianship (and renewal of guardianship) applications. Therefore to avoid guardianship applications that would have been renewed during this period from expiring before a renewal application could be lodged at court, and leaving the adult without appropriate protection, the provisions were brought in.

The conditions that existed when the provisions were brought in do not exist at present. Courts are dealing with guardianships as business as usual and the Office of the Public Guardian has more staff available. There are more doctors, mental health officers and solicitors available to process applications. The Scottish Ministers have acknowledged that this may change due to the increase in prevalence of Covid-19 and have therefore decided, whilst extending these provisions along with the majority of provisions in the Coronavirus (Scotland) Act 2020, that they should also be suspended.

Calculation of new expiry dates for guardianships
The ‘clock was stopped’ on 7th April 2020 (when the Act came into force) in relation to the duration of guardianships. On suspension of these provisions, the ‘clock started’ and the period for which the guardianship is in force resumed.
The provisions have been suspended from 30th September. Therefore the ‘clock was stopped’ from 7th April up to and including 29th September. This equates to 176 calendar days.
This means 176 days need to be added on to the original date of expiry of the guardianship to calculate the new date. For example:

Original guardianship expiry date – 20th April 2020
Add on 176 days
New guardianship expiry date – 13th October 2020

As stated above, the clock is stopped on all guardianship that were in existence when the provisions came in to force, not only those which would have expired during that period. For example a longer guardianship that expired in 2025, for instance, would still have had the clock stopped on it, so 176 days have to be added on to the expiry date. For example:

Original guardianship expiry date – 23rd May 2025
Add on 176 days
New guardianship expiry date – 15th November 2025

For the limited number of guardianships granted whilst the provisions were in force, the number of days from when they were granted until the provisions were suspended should be added on to the expiry date. For example:

Date guardianship granted – 3rd June 2020
“clock was stopped” up to and including 29th September 2020
Therefore number of days to add on to expiry date – 119
Guardianship granted for 3 years
New guardianship expiry date – 30th September 2023

And finally, for those guardianship granted from 30th September 2020 onwards, no additional days need to be added.

If you are unsure how the regulations have affected or may affect your application for guardianship, whether an initial application, renewal or variation, please contact our office to discuss further on 01383 431 101, email jemma@caritaslegal.co.uk or send an enquiry form via our website.

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