It is common to presume that if a family member or friend becomes incapable of making their own personal welfare or financial decisions, that a spouse, relative or friend will be able to step in and make those decisions for them. Unfortunately, there are no automatic legal rights in Scotland to do so.
If the incapable Adult does not have a valid Power of Attorney, the proposed Guardian will require to apply to the Sheriff Court for a Guardianship Order in terms of Adults with Incapacity (Scotland) Act 2000. Guardianship orders are commonly sought for the elderly or for children aged 16 or older who are deemed to be incapable of making their own personal welfare or financial decisions (both of whom are referred to as the ‘Adult’ below).
A prospective Guardian may seek financial powers, personal welfare or both financial and personal welfare powers in respect of the Adult. Only the powers that are required by the Guardian are granted by the Court as per the ‘minimum intervention principle’. This principle ensures that the Adult is safeguarded without their liberty being restricted unnecessarily. If you are consulting with a Solicitor regarding a Guardianship Application, here are some points you may wish to consider prior to your first meeting:
Who is the prospective Guardian?
One or more Applicant(s) may be appointed as Guardian. If more than one person requires to be appointed, this can be achieved by way of a joint Guardianship or by appointing a substitute Guardian who would step into the place of the primary Guardian, if required to do so. The Court must be satisfied that the Applicant is aware of the adult’s circumstances and condition and the needs of the Adult arising from such circumstances and condition, and of the functions of a Guardian.
What is a Guardianship Order?
A Guardianship Order is a Court order giving the Applicant(s) financial powers to make decisions regarding the Adult’s finances and property, welfare powers to make decisions regarding the Adult’s health and wellbeing, or both financial and welfare powers. Your solicitor will guide you as to what Powers are appropriate to seek and the Sheriff will ultimately determine which Powers are granted to the Applicant(s).
Why is a Guardianship Order required?
The Adult must be deemed as being incapable of managing their own affairs and there must be no other means of safeguarding the Adult. This will be evidenced by two medical reports, usually one will be completed by the Adult’s GP and one by an independent psychiatrist. If welfare powers are sought, then a Mental Health Officer from the Local Authority will require to complete a report too.
When should a Guardianship Order be applied for?
If a Guardianship order is required, you should consult with a solicitor as soon as possible. An incapax child will require a Guardian to be appointed to them as soon as they turn 16 years old. It may be sensible to consult with a solicitor around one year prior to ensure that the Application is submitted timeously (no earlier than three months before the child’s 16th Birthday).
How does the Court decide if the Guardianship Order should be granted?
The Sheriff will consider the Application for a Guardianship Order, together with the supporting reports. A Court Hearing is then fixed. All of the interested parties, including the Adult’s closest relatives, their primary carer, the Mental Welfare Commission, Local Authority and the Office of the Public Guardian will receive a copy of the Application and the supporting reports. These parties are given a set time period within which to intimate whether they wish to oppose the application. If the Sheriff is satisfied with the Application for a Guardianship Order, the order will be granted, and the Applicant(s) will be appointed as the Adult’s Guardian. The order may be granted indefinitely but this is not very common. Usually, a Sheriff will grant the order for a period of 3, 5 or 10 years.
Early advice from a Solicitor with expertise in the area is recommended.
If you would like to speak with one of our experienced Solicitors, please do get in touch today.
