If you think you may need to apply to be appointed as guardian to an Adult who has lost legal capacity in Moray…
The two most common fact situations we come across in practice are as follows:
- Where a child is reaching adulthood and the child has suffered from incapacity – usually lifelong to date – and their guardian or guardians as children (usually their parents) need to take on formal guardianship of them as an Adult; and
- Where the Adult with incapacity is in later life and due to supervening illness or accident has lost capacity and needs a family member to be appointed as their guardian.
This article focuses primarily on the “child moving to adulthood” situation.
But there are a lot of similarities across all the different types of guardianship scenario and we hope this article will be of use to everyone who is in the situation of possibly having to apply to be appointed as guardian to an Adult with incapacity.
For the rest of this article, the Adult with incapacity is referred to as the “Adult”.
The process of guardianship involves an application to the local Sheriff Court at Elgin.
This is assuming the Adult is resident within Moray.
Although it is a court action, it is not generally contentious. It is more of an administrative process.
What type of guardianship is required?
It’s necessary to decide whether you are going to require to be appointed as both financial guardian and welfare guardian. Welfare guardian is almost a ‘given’ but financial guardianship will depend upon whether the Adult has any assets in their name or sources of income or is likely to have these in the future.
Who should be appointed as guardian?
The legislation generally assumes that it will be a close relative – and a blood relative – of the Adult.
It’s also a question as to whether the application should be just by you or whether there should be at least one other relative involved. They can apply to be appointed as joint guardian with you. (Often, the request is then for a “joint and several” appointment by the Court – so guardians can make decisions “as a team” (jointly) or individually (severally – i.e. not jointly but “severed” from each other). It’s important that joint guardians think they will generally agree with each other and get along.
What information is required by your solicitor?
In the first place, what we really need from you is what you might call an ‘information dump’.
Giving us the personal details of all the relevant persons, namely, those who will be applying to be guardians and also the Adult’s personal details.
So, we would need:
- Full names;
- Addresses;
- Dates of birth;
- National insurance numbers;
- GP details for the Adult;
- Background details of the nature of the Adult’s condition/illness and how that has developed to its present level;
- How the illness/condition affects the Adult in their daily life in terms of capacity to do things and make decisions and live independently and so on;
- Some element of “prognosis” is also helpful, including any plans you may have for securing the Adult’s ability to live as independently as possible in the future; and
- Details of any savings or assets that the Adult has in their own name, including current and future sources of income.
How is a guardianship application funded?
Civil Legal Aid is available in Scotland for the guardianship court action. Normally, Civil Legal Aid is subject to means testing but for guardianship applications which include a welfare element, there is no means testing. (The means testing is of the Adult’s financial circumstances, not those of the person or people applying to be appointed guardians.) In other words, “everyone” qualifies.
This does not mean that all solicitors will offer Civil Legal Aid for guardianship applications, but Grigor & Young do.
What does Legal Aid cover in a guardianship case?
There is preliminary work required in getting the grant of Civil Legal Aid from the Scottish Legal Aid Board and the preliminary work is not always covered by Legal Aid. It will depend upon the Adult’s means as to whether “Advice and Assistance” Legal Aid is available for the preliminary work. If Legal Aid is not available for the preliminary work, the likely cost of that work will be of the order of £500 (with VAT chargeable in addition).
What information is required for a Civil Legal Aid Application?
In order to prepare for applying for Civil Legal Aid, we would generally want to have a statement by those who are applying to be guardians.
If there is only one applicant as a guardian, we would need a further statement from a close friend or relative to confirm the suitability of that person to be appointed as guardian in the circumstances. If there are joint applications for guardianship, their individual statements will generally corroborate each other sufficiently.
You might expect that the Legal Aid Board would require a medical report before granting Legal Aid (in respect of the Adult) but that is not the case.
Once Civil Legal Aid is granted, we notify the Local Authority of your intention to apply to be appointed as guardian.
They then put the case on a waiting list. Since Covid times, waiting lists have been variable in length. In pre-Covid times, there was rarely a wait of more than about three months. In some cases in the recent past, we have seen people waiting more than a year. Principally, the wait is for a Mental Health Officer (MHO) to be appointed. The MHO is a social worker who prepares one of the reports which is required by the Court as part of the guardianship application.
The other two reports we require to get are from a GP (generally the GP of the Adult) and from a psychiatrist. There are local psychiatrists who provide this service.
There are often charges for these medical reports but they are covered under Civil Legal Aid.
Once Civil Legal Aid is granted, we also prepare the draft Summary Application (court application).
That draft document is submitted to the Local Authority (The Moray Council) and also shown to the various people preparing reports, to assist them in the process. The various reporters all generally have to speak to the Adult and to the guardians and also other close family members in the process of preparing their reports.
Obtaining the reports
The MHO will often want to report last, having had an opportunity to see the medical evidence and take that into account as part of their report. It can be challenging in some cases to coordinate the obtaining of the various reports. In theory, they should all be dated within thirty days of each other and be no older than thirty days by the time the finalised Summary Application is submitted to the Court.
The Court process
If the Sheriff Clerk finds all the documentation to be in order, they will issue a Warrant for Service which sets out a timetable for the case. They will typically fix a hearing on the application for a date about six weeks into the future. The solicitor has to intimate the Application to some prescribed persons: Chief Social Worker of the Local Authority; Mental Welfare Commission; and the Office of the Public Guardian. The solicitor also has to intimate to other people specific to the case such as the Adult, their principal carer, any other close relatives who are not otherwise applying to be appointed as guardians. All of these people must receive at least twenty-one days’ notice of the hearing date, in the usual case.
Assuming all services and intimations are effected in time, the hearing usually takes place in the Sheriff’s private office. These days, the hearing will usually take place by video conference link. It can be helpful for the proposed guardians to be personally present at the meeting but, via video link, that is not always straightforward or practicable give that guardianship hearings normally take place as part of a larger court where several cases are calling consecutively.
How we can help
We hope this helps you – whether you are looking for help from a solicitor in Moray or elsewhere in Scotland. Please get in touch if you have any questions at all.
All initial enquiries are at no cost and without any obligation to take matters further with us. We’re happy to deal with questions because they allow us to improve and develop the content on this website for everyone’s benefit.
Why not give us a call on 01343 544077 or send us a Free Online Enquiry via this website?
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