A Guide to Guardianship Orders in Scotland from our Glasgow Guardianship Solicitors
What is a guardianship order?
A guardianship order is a court order which gives a person the authority to act on behalf of an adult with incapacity and safeguard and promote their interests. The adult must be over 16 and incapable of acting or making decisions for themselves. Such an order is appropriate when decisions regarding an adult with incapacity need to be made on an on-going basis.
The sheriff will decide on the length of the order after considering the condition and circumstances of the adult. It is common for an order to be granted for three years however this time period may be extended and in certain circumstances may last the rest of the adult’s life.
What powers can a guardianship order provide?
A guardianship order can give the authority to act on behalf of the adult with incapacity in financial matters and welfare matters. The powers given are wide-ranging and cover receiving income, paying bills, making contracts, buying and selling things, managing money, making decisions about accommodation, care services and consenting to medical treatment.
Financial guardianship powers can include the authority to operate any account containing the adult’s funds and to receive on behalf of the adult any income in the form of pensions and benefits.
Welfare guardianship orders can include the power to decide where the adult should live and the right to have access to any personal information concerning the adult such as medical records or social work files.
The order would grant powers to benefit the adult with incapacity where there is no other reasonable way of achieving that benefit for them. Moreover, the order should not restrict the adult’s freedom any more than is necessary.
When is a guardianship order appropriate?
There are a range of circumstances in which a guardianship order may be appropriate. For example, you may know an adult who is unable to seek appropriate help or give consent to services. You may care for a young person (who is over 16) who suffers from a learning disability and is therefore unable to properly manage their own affairs. Furthermore, you may be concerned about the conduct of someone currently appointed as attorney for the adult and feel that a guardianship order is necessary to better protect their interests.
Essentially, if you are close to an adult who is unable to make decisions in relation to their financial well-being and welfare a guardianship order is worth being considered.
What is ‘incapacity’?
Incapacity can be by reason of mental disorder such as dementia or Alzheimer’s disease. It can also be caused by physical impairment, such as a stroke, which makes the adult unable to manage their affairs. The law says that an adult legally lacks capacity when there is evidence that he or she is unable to:
- make a decision based on the information given
- communicate the decision
- understand the information relevant to the decision
- retain the memory of the decision
Who can apply for a guardianship order?
A guardianship order can be sought by anyone who has an interest in the adult. This covers not only family members but also friends of the adult.
Guardianship can be applied for by more than one person as joint guardians. This can be useful as it allows tasks to be shared among, for example, different family members. It should be noted that a Sheriff will usually only appoint family members as joint guardians.
A substitute guardian can be nominated when making the application. This substitute would replace the initial guardian if they are unable to continue to act.
It is possible to apply for someone else to become a joint or substitute guardian at a later stage.
A local authority may also apply for a guardianship order. This would be done after the authority has assessed the needs of the adult and considers a guardianship order necessary. They will then apply for an order if there is no one else to do so.
The process for obtaining a guardianship order can very often be complex so it is therefore highly recommended that legal advice is sought. We are experienced in making applications to the Sheriff and shall obtain the required reports for you, formally intimate the papers and conduct the court hearing on your behalf. We can also advise on the general obligations and actions required of a Guardian and simplify the procedure for you.
Can I receive legal aid?
Civil Legal Aid is generally available when welfare powers are requested and may be available when the adult has financial assets and capital. Legal advice and assistance may be available for initial work relating to Guardianship Orders, subject to financial assessment of the Adult’s capital and income. We can advise in respect of all aspects of eligibility for legal aid and our private fees.
The process of obtaining a guardianship order in Scotland
The process of obtaining a guardianship order in Scotland can be carried out by a person acting alone or with the advice and assistance of a solicitor. As the process can often be complex it is advisable that the help of a solicitor is sought. Our solicitors have extensive experience in applying for guardianship orders and are able to ensure that the process is as simple as it can be.
Can I receive legal aid?
Any initial meeting with a solicitor may be covered by legal aid. This type of legal aid is known as Advice and Assistance and your eligibility will be determined on the basis of the means of the Adult. Your own means will not be considered. You should bring to the first meeting bank statements for the Adult and such other vouching as you can find for the Adult’s income and funds.
When seeking an order from the court, you may be eligible for civil legal aid. Our solicitors can help with your application to the Scottish Legal Aid Board. When considering whether you are entitled to receive civil legal aid the Board will consider the lack of capacity for the Adult; the steps that need to be taken to assist and protect the Adult; and that you are able and suitable to act.
Legal aid is widely available when seeking a guardianship order. When applying for either welfare powers or a combination of welfare and financial powers there is no financial assessment. You will receive Legal Aid from the Scottish Legal Aid Board regardless of your financial circumstances or those of the Adult. This does not cover the cost of an initial meeting and the steps required for the application for civil legal aid but will cover the preparation of the summary application to the court and the medical and other reports as well as representation in court.
How do I apply for a guardianship order?
The first stage of the process is to intimate to the local authority that you intend to apply to the court to be appointed as Guardian. The Council are asked to appoint a Mental Health Officer (MHO) to make enquiries and prepare a report for the court. This report considers how appropriate a guardianship order is following an interview and assessment of the Adult. It will also discuss your suitability to act as guardian.
The usual practice is to enclose with this report a draft of the summary application which will later be lodged with the court. There is no standard application form but the Adults with Incapacity (Scotland) Act 2000 provides a style application form which may assist you if you apply without the assistance of a solicitor.
When the Council allocate an MHO to report, we instruct the two medical reports to confirm the lack of capacity in terms of the Act. When all three reports are available, the terms of the summary application are finalised and the application can be lodged with the sheriff clerk at the Adult’s local sheriff court.
The interview and assessment of the Adult for the reports should take place no more than 30 days before the application is received by the sheriff.
Do I need to appear in court?
The decision to grant a guardianship order is made by the sheriff. The hearing can take place in the sheriff’s office or in the courtroom. The hearing will usually take place in the courtroom if more people than the applicant or the applicant’s solicitor are appearing.
If you are making the application yourself, you will have to attend the hearing. However, if you have instructed a solicitor to represent you, there is no requirement to attend.
What happens at the hearing?
The hearing is held in private. Various parties can attend including the Adult, family members and care workers. Usually only the Applicant’s solicitor attends.
At the hearing, after considering the reports and hearing evidence, the sheriff will decide whether a guardianship order should be granted. There are several options available to the sheriff:
- He/she can either grant the order as it has been requested or he can grant the order subject to restrictions. On granting the order the sheriff will also decide how long it is to last. A guardianship order commonly lasts 3 years and is subject to review. The Sheriff has discretion to grant the order for a longer period or an indefinite period on cause shown.
- If there is some dispute over what is best for the Adult or it is thought that additional information may assist to support the application for the order, the sheriff may postpone his decision so that he/she can obtain further reports and possibly a further assessment of the Adult. A further option for the sheriff is to grant an ‘interim order’. This is where the sheriff appoints someone to act on behalf of the Adult on a temporary basis, usually for up to three months, before a final decision is made. This can allow urgent steps to be taken between the commencement of the action and the hearing to grant the order, e.g. to assist with the Adult’s move from hospital to an appropriate Care Home.
- If the guardianship order is a financial one, the sheriff will generally order the newly appointed guardian to find ‘caution’. This is a form of insurance which protects the Adult from suffering any financial loss due to the negligence or wrongful behaviour of the Guardian.
What if someone opposes the application?
When preparing the summary application you are required to provide the details of family members and others with an interest in the Adult (interested parties). The sheriff will order that these people are notified of the application for guardianship. If you are bringing the application yourself, the sheriff clerk will notify the interested parties for you. If not, it will be the responsibility of your solicitor. Those with an interest should be sent a copy of the application form, the supporting reports and the date of the hearing. Notifying those with an interest in the Adult allows them to appear or be represented at the Hearing, and allow them to raise any objection they may have to the application. They need not respond if they support your application.
Where someone does oppose the application they will have to appear at the hearing. The Sheriff will determine how their concerns may be considered. The Sheriff may order the opposer to lodge written Answers to explain their position. He may appoint a Safeguarder (normally a lawyer) to make enquiries and to convey the Adult’s view to the court if that can be ascertained. Otherwise the Sheriff may require evidence to be heard at a Proof hearing. This objection can come from the Adult or any interested party. Where there is opposition, more than one hearing may be required to consider matters.
If you think that your application may face opposition, seeking the advice of a solicitor is recommended.
How long does this whole process take?
It can take six months to a year. There are unavoidable delays in the Council allocating an MHO to compile a report on the application, due to the Council’s limited resources.
What happens after I have been appointed guardian?
Once the sheriff has granted the guardianship order, a copy of this decision will be sent to the Office of the Public Guardian Scotland. (OPG) This is the body in charge of supervising those individuals who have been appointed to manage the affairs of others. The Public Guardian will then notify the Adult and the relevant local authority. Once registered, the order is sent to the guardian. There is a fee of £70 for registering the order which the guardian must pay. There is a possible exemption from this fee on production of the civil legal aid certificate.
It is the guardian’s responsibility to ensure that all of the interested parties have been informed of the order. This includes notifying family members and care workers. Banks and building societies must be notified if the guardianship order provides financial powers.
A financial guardian will require to provide the OPG with an inventory of the Adult’s estate and a management plan (unless dispensed with by the Sheriff), and to prepare and submit annual accounts. The Office of the Public Guardian will ensure that a financial guardian is exercising their powers responsibly through providing every financial guardian with a case worker. This case worker will monitor how the guardian manages the Adult’s financial affairs.
Contact our Guardianship Solicitors in Glasgow, Scotland
Call The Glasgow Law Practice today on 0141 530 1193 or contact us through our online enquiry form. Our friendly and professional legal team will handle your situation in complete confidence.