Nowadays, most people are aware of the need to grant a Power of Attorney in favour of another, whilst they have the capacity to do so, to ensure that their affairs are properly handled in the future should that capacity be lost. What they may not be aware of, however, is that should they fail to arrange such an appointment before that capacity is lost, Legal Aid may be available to their next of kin to allow them to apply to be appointed as their Guardian through the courts, without that Legal Aid being means tested.
At present, Legal Aid may be available to cover the cost of the Court action to have a Guardian appointed, provided welfare powers are being sought, whether on their own or along with financial powers, which is more common. Welfare powers can include the ability to decide where someone should live, the care and treatment they should receive, what clothes they will wear and the activities in which they might participate.
Legal Aid is usually means tested, which means that the income and capital of any applicant are both assessed when determining whether the applicant is eligible. However, if welfare powers are being sought, neither the assets of the applicant seeking to be appointed as Guardian, nor those of the person for whom those powers are being sought, are taken into consideration when applying for Legal Aid. Such an application will be automatically eligible on the financial front, regardless of income and capital.
It is, of course, still necessary for the applicant to show they have an interest in the case and that it is reasonable for Legal Aid to be granted. If the applicant is a family member, seeking to be appointed for a relative who has been diagnosed as lacking capacity, these requirements can usually be met. Once the Civil Legal Aid application has been granted, the appointed solicitor can then obtain the various reports required in support of the application for Guardianship – including two medical reports, the cost of which are covered by Legal Aid. Once the reports are available, the solicitor will lodge them in Court along with a Summary Application, which is the document requesting the appointment.
Usually there is a court fee payable when the application is lodged, but that fee is waived if the case is legally aided. Once the application has been granted the Court will grant an Interlocutor (order) appointing the Guardian, which is registered with the Office of the Public Guardian (Scotland). A registration fee is normally payable at this stage, but this is exempt if the case is legally aided.
It is important to note, however, that if only financial powers are being sought and not welfare powers, any Legal Aid application would be means tested and would not automatically qualify on financial grounds.
In each case, it is essential to determine whether the order sought is in the best interests of the person for whom the Guardian is being appointed. That said, it is usually in a person's interests that a Guardian be appointed to deal with welfare matters on a formal basis, to ensure that legal safeguards are in place for their protection. It is also important to note that there are two types of Civil Legal Aid – Advice and Assistance, which covers the initial work which is carried out before a court action is raised and full Civil Legal Aid, which covers the court action itself.
When someone applies for Advice and Assistance for a Guardianship Order, their application will still be means tested, but this will be in relation to the estate of the person for whom the Guardian is sought and not their own. The application may qualify, or be subject to payment of a contribution. Even if it does not qualify for Advice and Assistance, a solicitor can still be engaged to deal with the initial work, which needs to be carried out on a fee-paying basis with an application being lodged for full Civil Legal Aid to cover the cost of the court action, which is by far the most expensive part of the process.
Obviously it is still preferable to grant a Power of Attorney in favour of another before capacity is lost but if time does run out, it is useful for families to know that anyone who applies for Welfare or Welfare and Financial Guardianship is automatically entitled to Legal Aid regardless of their financial circumstances.
Emma Parris is a Litigation Associate in Russel + Aitken LLP