What is Guardianship?
Guardianship is a court appointment which allows you to look after someone else’s affairs and take decisions for them when they are unable to do so for themselves.
Often, this is due to the onset of illness (for example, vascular dementia) which causes someone, who was previously fit and healthy, to be unable to manage their own affairs. It can also be required as the result of a life-long condition.
Usually, Guardianships allow you to take both financial and welfare decisions on the person’s behalf but is it possible for a Guardianship to be restricted to one or the other, if appropriate.
What is the difference between Guardianship and Power of Attorney?
A Power of Attorney is a written document which you grant and which gives someone else the authority to take decisions on your behalf, should you become incapable of doing so (or should it be necessary for other reasons – for example, because you are out of the country for a while).
At the time you grant a Power of Attorney you must be assessed by your GP or Solicitor as having the “capacity” to do so (i.e. you must understand the nature and effect of the Power of Attorney you are granting).
A Guardianship is a court appointment to allow you to manage the affairs of someone else who has lost the “capacity” to do so themselves and has no Power of Attorney already in place.
A Guardianship is much more complicated to arrange than a Power of Attorney and can, as a result, be more costly.
For that reason, we strongly encourage you to consider granting a Power of Attorney whilst still fit and healthy, in case anything unexpected happens in future.
How do you apply for Guardianship?
To apply for Guardianship you must make a written application in a special form (known as a “Summary Application”) to the local Sheriff Court.
The Application must be accompanied by two medical reports as a well as a report from a Mental Health Officer of the local Social Work Department. These reports must all be produced within a specified time.
Applying for Guardianship is not straightforward and it is in your best interests to consult a Solicitor, who will be able to draft the Application and ensure the Reports are produced within the required timescales.
If the time limits are not met, it can cause significant difficulties and may result in the Court refusing the Application.
How much will it cost?
If you are applying for Guardianship which allows you to take Welfare decisions on someone’s behalf, you will usually qualify automatically for Civil Legal Aid, which will cover the costs.
In other words, the financial circumstances of you or the person who is to be the subject of the Guardianship application will not affect eligibility for legal aid where there is a Welfare element.
If you are seeking a Financial Guardianship only, your eligibility for Legal Aid will be means-tested.
Only a Solicitor can apply for Legal Aid on your behalf.
Legal Aid is not retrospective, so you should seek legal advice at the earliest opportunity.
An example of a Guardianship situation
Imagine your son or daughter is about to turn 16 years of age. They have learning difficulties and cannot manage their own affairs. Is a Guardianship required?
Almost certainly, yes.
While they were a child, you would have had no difficulty managing your son/daughter’s affairs, simply as their parent. However, once they reach age 16, they are considered to be an adult in the eyes of the law.
Banks and other official institutions will likely refuse to allow to continue to deal with their affairs unless you have been officially appointed Guardian.
You can make a Guardianship application up to three months before your son/daughter’s 16 birthday, to ensure everything is in place by the time they reach 16.
What you need to do once you have been appointed Guardian
Once you have been appointed, you will be supervised by the Office of the Public Guardian (Scotland).
This is a government agency, with the duty to ensure that you carry out your role as Guardian in accordance with the legal requirements.
You will require to submit various documents to them, including a Management Plan and Annual Accounts.
The Office of the Public Guardian will provide you with further details, guidance and support once you have been appointed.
How we can help
If you have any questions about a possible Guardianship application or the related topics of Intervention Orders and Powers of Attorney, feel free to contact us for a chat.
All initial enquiries are free of charge and without obligation.