We get a lot of enquiries about applying to be appointed as legal Guardian to an adult who has some form of incapacity.
With our ageing population, we are seeing increasing need for appointment of guardians to people who are suffering from some form of dementia.
However, the need for a guardian to be appointed can arise at any age.
It may become necessary due to a stroke or heart attack, or as the result of an accident. Children with life-long incapacity may well require the appointment of a guardian on reaching age 18.
In this article, we refer to the adult with incapacity as ‘the Adult’.
If you are considering applying for guardianship, we find it is generally a good idea for you to be in touch with the Social Work Department of your local council at an early stage. In Moray, that would be The Moray Council.
It is helpful if the relevant personnel from the local council are supportive of any application you want to make.
Without that, it is bound to be much more difficult and can prove to be a waste of time. It is also helpful if you can clarify whether you intend to apply on your own account or whether that would be jointly – with another relative, for example.
The legislation covering Adults with Incapacity tends to favour close (blood) relatives of the Adult over others and this is something to bear in mind if you wish to apply for guardianship of someone who is, say, your ‘in-law’. Depending on the overall circumstances, that fact alone may make the court reluctant to appoint you, if there are other, closer relatives.
Appointment as a guardian or joint guardian is made by the Sheriff Court in Scotland.
Civil Legal Aid is available for the court application and, provided the guardianship application includes a welfare element, unlike just about everything else which is legally aided in Scotland, eligibility does not depend upon means.
The Scottish Legal Aid Board (SLAB) only need to be satisfied about the merits of the case. In other words, they only need to be satisfied that there is a clear need for appointment of a guardian and that the proposed person is a suitable person.
There is a preliminary type of Legal Aid which comes before Civil Legal Aid.
In some situations, that legal aid – Advice and Assistance (A&A) – will cover the costs of the preparation and submission of the Civil Legal Aid application. However, for A&A the means of the Adult are taken into account. It can be a complicated assessment process. In some cases, for assessment purposes, where the Adult is over retirement age, up to £25,000 of capital can be disregarded.
You may find it useful to have a look at SLAB’s free online eligibility calculator for A&A.
If you do not have eligibility for A&A, you will be charged for the preliminary work required in getting to the stage where Civil Legal Aid is granted.
The stages of the process
1. Assessment for A&A, which failing, charge for preliminary work.
2. Civil Legal Aid Application
As mentioned above, as part of the application process, it is a good idea for the proposed guardian to have checked the position with the local authority to see that they, in principle, accept that there is a need for a guardian to be appointed (which can save a lot of wasted time and effort).
Beyond that, on the merits of the Civil Legal Aid application, SLAB need to be satisfied that there is a clear basis for the application. It must be reasonable and it must generally appear to have a better than 50% chance of being granted.
SLAB do not need a medical opinion to confirm the incapacity of the Adult.
In most cases it will be sufficient to have a statement from the applicant (or applicants – if it is a joint guardianship) and an independent, corroborating witness to confirm the fact that the Adult is not fit to handle his or her own affairs. In fact, SLAB will generally not pay any outlays associated with getting a medical report at this stage, so it is to be avoided if at all possible.
Once the necessary statements (or ‘precognitions’, as we refer to them) are prepared, the Civil Legal Aid application can be submitted via the SLAB online system.
According to SLAB’s administrative targets, they aim to process all Civil Legal Aid applications within 32 working days. In our experience, however, for guardianship applications, the timescale is usually less than that.
3. Grant of Civil Legal Aid
This is notified to the solicitor via SLAB’s online system and the Legal Aid Certificate can be printed out.
The solicitor then drafts the court document – called a Summary Application. It sets out:
- the details of the proposed guardian or guardians,
- the details of the Adult,
- the nature of the Adult’s incapacity,
- brief details of the known assets and liabilities of the Adult, and
- details of various persons to whom intimation of the application should be made.
The list of persons includes some ‘standard persons’ to whom intimation must be made:
- Chief Social Worker of the Local Authority;
- Mental Welfare Commission; and
- the Office of the Public Guardian.
Beyond that, those listed will be any known close relatives of the Adult and Adult’s ‘primary carer’ (which could be, for example, a care home manager or hospital consultant, if the Adult is currently staying in a care home or is in hospital).
4. Instruction of three reports
The draft Summary Application will be sent to the Local Authority for the appointment of a Mental Health Officer (MHO). That officer must fill in a standard form report by means of interviewing the Adult, any carers for the Adult and the proposed guardian or guardians.
The MHO will make a recommendation at the end of the report as to whether this is considered to be a suitable application or not. This report will be highly influential as regards whether the guardianship order is granted or not.
The solicitor for the applicant guardian or guardians must also obtain a report from a GP and a psychiatrist.
The reports from the MHO, GP and psychiatrist must all be dated within thirty days of the date the application is submitted to the court, which can be a bit of a logistical problem.
5. Court application
Once the three reports are available, the Summary Application can be finalised and submitted to the court (incorporating the three reports as productions). The court warrants the papers and returns them to the solicitor.
The papers are then served by recorded delivery upon the various parties outlined above. This is all relative to a hearing date which the court fixes and sets out in the warrant of citation which is attached to the papers returned from the Sheriff Court.
The solicitor must (generally) give the various parties at least three weeks’ notice of the hearing. The date fixed for the hearing will usually be about six weeks from the date when the papers are warranted by the Sheriff Court.
6. Hearing of the application
Assuming the papers are all successfully served in time, the solicitor completes various certificates of service and returns all the papers, including the Summary Application and the three reports, to the Sheriff Clerk’s office within the Sheriff Court, in time for the hearing.
In Elgin, these hearings are usually fixed to take place at 9:30am or 9:45am. The hearings do not take place in open court. They take place in the Sheriff’s office (‘in Chambers’).
It is usually helpful if the proposed guardian or guardians can be personally present, so that the Sheriff can speak to them if necessary.
The sorts of issues which are relevant at the hearing include:
- The length of any appointment (‘indefinite’ appointments are theoretically possible but it will depend on the individual circumstances and the Sheriff will require to be persuaded if the period of appointment is requested for longer than the basic minimum three year period).
- Whether caution should be fixed (this Scottish legal term is pronounced ‘kay-shun’ and it means ‘security’ or ‘insurance’). If the Adult has assets, usually the court will ask the guardians to find caution up to the level of the value of the assets. This requires them to take out an insurance policy through a recognised caution provider (a large insurance company) as insurance against the risk that they might mismanage or squander the assets.
7. Grant of Order
Assuming the court grants the order, it will send the final order to the Office of the Public Guardian (OPG). The OPG will issue the guardian with their Certificate of Appointment in terms of the court order.
Where the Adult owned heritable property (e.g. a house or flat), the decree will provide for the guardian having power to deal with that asset as they think proper. The guardian’s interest requires to be registered in the Public Register for property in Scotland so that correct information is available as to which person has power to deal with the property (e.g. to sell it).
How we can help
We hope this outlining of 7 steps in making an application for guardianship of an Adult with incapacity is helpful to you, if you are in a situation where you – or someone close to you – might have to seek this type of appointment.
If you have any questions at all, please get in touch with us. You can call Greg Robertson or Peter Brash on 01343 544077 or you could send us a Free Online Enquiry. All initial enquiries are at no charge and without obligation.