If you have ever had cause to look into a Guardianship Order for a member of your family, it likely means that you are in a difficult situation where a loved one is unable to make decisions for themselves.
This could be due to temporary or long-term health issues such as dementia, autism or a learning disability and they lack capacity, which means someone else will need to help make their decisions for them. The person appointed will be known as the ‘Guardian’, and will have the responsibility to make personal, health and/or financial decisions on behalf of the person.
How does Guardianship differ from Power of Attorney?
It can be confusing, as both fulfil the same basic function – that is allowing someone to act on behalf of another, looking after their financial and/or welfare matters. But the difference is that a Power of Attorney can only be granted from an individual who can understand and explain their wishes whereas guardianship applies when a person does not have the capacity to make decisions on their own behalf.
In Scotland, a guardianship is applied for through the Sheriff Court (and usually takes six months to a year to be granted), whereas a power of attorney is a document prepared for the individual and signed by them in the presence of a solicitor or doctor. A guardianship is for a fixed period of time (although in exceptional circumstances it may be granted indefinitely ), whereas a power of attorney stays in force for the duration of the individual’s life unless they choose to revoke it or it is terminated for some other reason.
What are the circumstances where Guardianship can be granted?
Guardianship can only be granted if the individual lacks capacity to make particular decisions themselves. This might be due to an illness, a disability or an accident and the capacity could either be lifelong or temporary. The court will need to be shown evidence by way of medical reports to demonstrate that the person does not have capacity.
If you are a carer for someone who you think lacks capacity, you can seek advice about how to establish if that is the case and whether guardianship is the most appropriate way to assist them with their affairs.
What is a Guardianship Order?
A Guardianship Order is a court appointment that authorises a person to take action or make decisions on behalf of an individual who lacks capacity. This might be a close family member, a friend or a professional. A Guardianship Order can be granted to deal with financial matters, matters relating to property, or personal welfare (for example, being placed into a nursing or care home) or a combination of matters.
What is the process?
If you think or are advised that a Guardianship Order is needed, the first step would be to consult a specialist solicitor who has experience in this area. They can advise you on the next steps and will draft an application to the Sheriff Court listing the powers you are requesting and why, with the relevant background information.
It will be necessary to demonstrate to the court that the person applying for guardianship is appropriate to act as a guardian and this will involve obtaining background reports.
The solicitor will attend a court hearing on your behalf to present your case and if the order is granted, they will advise you on the next steps. If anyone challenges the application for guardianship, it may be necessary to have a more in-depth hearing (known as a “proof”) in which each side will put forward their arguments before the sheriff makes a decision.
Who can apply for a guardianship order?
Anyone can apply to become the guardian of another adult if they have a legitimate interest in their life (although it is usually close family members that apply). And more than one person can apply, in which case joint guardians can be appointed.
While anyone can apply for guardianship, it’s worth noting that the court will only grant a Guardianship Order if it considers that there are no other means available to manage a person’s affairs and will always seek to uphold an individual’s rights.
What powers can be given under a guardianship order?
Again, it’s very much dependent on the individual’s circumstances. In Scotland, there are two types of guardianship. Welfare guardianship allows the guardian to make decisions on behalf of someone relating to their health and welfare, like where they should live, consenting to medical treatment and any decisions needed regarding their care.
Financial guardianship powers are applied for when someone has financial matters that require to be managed on their behalf - for example, dealing with the sale or rental of their property or managing any investments. Financial guardianship is not usually needed for simple financial transactions or if the person doesn’t have many assets.
Who do I speak to to find out more?
Guardianship applications can be complicated and, as we have mentioned, each case is different. You will need to speak to a solicitor who has experience with such cases and they will guide you through the process, and advise what will be needed as well as representing you in court to gain the order.
At Gibson Kerr, we have a team of solicitors who have years of experience in dealing with guardianship cases. We understand that everyone’s situation is unique and we will work with you to make the process as easy as possible. If you want to have a chat about guardianship, power of attorney or any other aspect of personal law, please get in touch with our Personal Law Partner, Lindsay Maclean by emailing [email protected]
Alternatively, you can call 0131 208 2260 or visit www.gibsonkerr.co.uk.