Why apply for Guardianship ?
In Scots law, until a child is 16, parental responsibilities, are to:
- safeguard and promote the child’s health, development and welfare;
- provide the child with appropriate direction and guidance;
- maintain personal relations and direct contact with the child;
- act as the child’s legal representative.
Having Parental Rights and Responsibilities entitles a parent to take key decisions relating to the child.
Parents do not have those rights when the child becomes an adult, at 16.
What is a Guardianship Order ?
Guardianship is a court appointment which authorises a person to take action or make decisions on behalf of an adult with incapacity, beyond the age of 16 and as appropriate to their needs. In fact Guardianship can be applied for in the three month period leading up to, as well as any age after, the child’s 16th birthday.
A guardian has legal authority to make decisions over the long term on behalf of an individual in relation to the individual’s financial matters, property, personal welfare or a combination of these.
More than one person (often parents, brothers and sisters) can apply for an appointment under the same court order although each will have full individual authority as guardians if the appointment is made.
Prior to a court order for guardianship, the rights of an adult with incapacity are protected by a thorough, independent, evaluation of their needs, in the application process and report to the court, however the facts are, that if such an adult needs a guardian to protect and represent their interests, because the evaluation evidences that they cannot represent themselves, the court will award guardianship. The period of guardianship ranges from the standard term of three years up to indefinitely, influenced by the reports and determined by the Sheriff.
Where application for a guardianship order includes the personal welfare of the adult, civil legal aid may be available to help with legal costs of making the application. The legal aid is assigned to the adult with incapacity, not to the guardian.
A power of attorney is different from a guardianship order as it is signed before an individual becomes incapable.
The law concerning guardianship orders is found principally in the Adults with Incapacity (Scotland) Act 2000 (the “Act”).
Who can apply for a guardianship order?
In most circumstances, a family member or a friend applies to the sheriff court to become a welfare and/or financial guardian. Alternatively, someone acting in a professional capacity may make the application e.g. a solicitor or accountant. The applicant is usually an individual, unless the local authority has assessed the needs of the individual if there is no one else to do so. In these circumstances the Local Authority can be appointed. It is possible for more than one individual to apply but the sheriff will usually only appoint relatives of the individual as joint guardians.
What needs to be considered when deciding whether or not to make an application?
Before applying for a guardianship order, the applicant needs to be confident that the order would be the least restrictive way of managing the individual’s affairs and that it would benefit the individual. The applicant must consider:-
- if the individual has been consulted and his/her wishes have been taken into account;
- if the individual appears unable to give consent to any care needs that he/she may have;
- if the individual cannot make decisions to safeguard or manage aspects of their financial affairs, property or personal welfare; or
- if he/she is the parent of a young person who has a learning disability and who needs someone to make significant decisions for him/her.
What powers can be applied for?
When making an application for guardianship, it must state which area the guardian wishes to have authority to make decisions in now and in the future i.e. the powers. These powers are then approved by the sheriff. The Act states that an order can confer specific powers on a guardian but the following are examples of general powers that may be included:
Financial guardianship powers
- borrow money on behalf of the individual;
- pay all debts and liabilities due;
- deal with the individual’s income tax; or
- operate any bank accounts.
Welfare guardianship powers
- decide where the individual should live;
- arrange any work, education or training;
- take the individual on holiday; or
- consent to medical treatments.
How do I apply for a guardianship order?
Although not essential, an applicant may wish to engage a solicitor to assist with the application process. An applicant may be eligible for civil legal aid to help with the cost of making the application (this is awarded to the person with the incapacity, not the person(s) applying for guardianship). A separate application would have to be made to the Scottish Legal Aid Board who would determine whether legal aid would be available.
Once the applicant has considered the above, the application procedure is as follows:
1 The applicant must obtain and complete a summary application form which includes the powers. There is not a standard form but the Act has a style to follow. The completed application should be lodged with the sheriff clerk in the area that the individual resides with the appropriate fee. Any application fees which are required to be paid can be met out of the individual’s estate.
2 Three reports must be accompanied with the application to the sheriff clerk. Two of these are medical reports, assessing the capacity of the individual in relation to the powers requested. The third report is a suitability report, the content of which will depend on the powers being sought, but the applicant must be interviewed on their suitability as a proposed guardian. The reports have to be obtained and lodged with the court, along with the Summary application, within 30 days of the first interview with the adult having taken place.
3 The application form asks for contact details of family members and others who have an interest in the welfare of the individual. The sheriff clerk then notifies these persons (or the solicitor does should you decide to appoint one) and there is an opportunity for any objections to be made.
4 A hearing is then held in private and various parties can attend e.g. the individual, a relative, a carer etc. The sheriff will reach a decision about the application and may grant the order. The sheriff has the authority to put time limits on the order; 3 years is the default position but the sheriff could grant it for longer and it is always subject to review.
5 Once the sheriff has granted the order, the sheriff clerk will send a copy of the interlocutor (the decision of the court) to the Public Guardian. The sheriff may require a financial guardian to find Caution (a type of insurance which safeguard’s the individual’s estate from any loss as a result of the guardian’s wrongful or negligent actions). The Public Guardian notifies the local authority and the individual and sends the order to the guardian once registered (and if applicable once the guardian has Caution). The guardian must pay the fee for registering the order. The Public Guardian also alerts the Mental Welfare Commission in cases where the incapacity is due to a mental disorder and the guardianship is for their personal welfare.
What happens once a guardian has been appointed?
Once the guardian has been appointed, he/she will have to ensure that all of the necessary parties, including family members, are informed e.g. for financial powers, all banks, financial authorities etc. and for welfare decisions any care managers, care providers etc. should be notified.
Supervisory bodies will also contact the guardian. All financial guardians are allocated a case worker from the Office of the Public Guardian who will discuss financial management for the individual and ensure that the guardian is carrying out their duties appropriately. In certain circumstances, a guardian must obtain consent from the Office of the Public Guardian e.g. to make gifts out of individual’s estate or to sell any property owned by the individual.
If the guardian has welfare powers as a result of mental incapacity, the Mental Welfare Commission may write to the guardian and the individual to offer advice. The Commission can also investigate any complaints. Finally, the local authority is under a duty to visit the guardian within 3 months of being appointed; again within the first year; and twice a year thereafter. This visit is usually carried out by someone from Social Services.
So the above is the legal stuff but how does this affect us? We truly believe that ensuring a Guardianship Order is in place is one of THE most important things we can do for the people we care for – regardless of their capacity. We have heard of horror stories where medical treatment has been given regardless of the parents’ wishes, thoughts and concerns. We have heard of social work decisions on individuals being encouraged to live with their boyfriend/girlfriend , where children have been born and the parents and grandparents have been excluded as a means of support, resulting in the child being taken into care and a whole disaster of complications as a result of this.
We at Options in Life, do believe in giving our loved ones as many opportunities to reach their fullest potential and to live their lives in the same manner but HOWEVER, caution and common sense must apply to decision making. We know the people we care for best and where there is a lack of capacity it is imperative that Guardianship Orders are in place. This process can be started by making an appointment with a Lawyer and they will keep you right on what and who is required to have the Order completed.
If you have any queries please do not hesitate to get in touch at firstname.lastname@example.org.