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Guardianship for Adults with Incapacity

As our population ages, the question of how to safeguard the affairs of adults who lose their mental capacity to deal with their finances and welfare, becomes more pertinent.  If there is not a Power of Attorney in place, a Guardianship Order may be required to help look after the affairs of, or make decisions for, a loved one.  Guardianship Orders are often required for adults who have suffered a lack of capacity due to an illness or injury.  

At Pagan Osborne we offer an expert guardianship service to our clients in Edinburgh and Fife, to ensure that the correct process under the Adults with Incapacity (Scotland) Act 2000 is followed to obtain a Guardianship Order.   

What is a Guardianship Order?

A Guardianship Order is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity.  It appoints a person as the adult’s guardian. Anyone with an interest can make an application for a Guardianship Order.  An adult is someone who is over 16 years old, who is not able to look after their own affairs.

Guardianship is likely to be more suitable when decisions need to be taken on an ongoing basis.  Guardianship will only be granted if it can be shown it will benefit the adult.  It must also be demonstrated that the adult’s wishes have been taken account of, so far as can be ascertained.

How to apply for a guardianship order

In almost all cases, a solicitor will be needed to assist.  At Pagan Osborne, these are the steps which we would follow to progress a Guardianship Order:

1. A solicitor from our family law team would meet with the applicant (the person wishing to become guardian) to take full details as to the adult’s circumstances.  This meeting allows us, as solicitors, an insight into the adult’s personal situation and care needs.  The applicant is usually a close family member, although solicitors are often also appointed as guardians, particularly if they have acted for the adult in the past.

2. The next step is for a summary application to be drafted, which sets out the facts of the case and seeks the various different powers you are seeking for the applicant.  Broadly, you can apply for financial powers (e.g. to deal with a bank account, to sell shares or to sell the adult’s home), and/or welfare powers (e.g. to make decisions regarding the adult’s personal welfare, such as where the adult should reside, including which nursing home would be most suitable). 

3. In addition to the summary application, reports which give information as to the level and nature of the adult’s incapacity are required for the Sheriff (judge) to consider.  Section 57(3) of the legislation requires an examination and assessment of the adult (carried out not more than 30 days before the lodging of the application) by:

(a) at least two medical practitioners (one of whom in a case where the incapacity is by reason of mental disorder must be a medical practitioner who has special experience in the diagnosis or treatment of mental disorder);

(b) where the application relates to personal welfare, a mental health officer / MHO (this is a social worker employed by the local authority in the area where the adult resides) containing their opinion as to the general appropriateness of the order sought, and as to the suitability of the individual nominated;

(c) where the application relates only to property or financial affairs, by a person who has sufficient knowledge to make such a report. (This person is usually a social worker or solicitor who is experienced in preparing these reports.)

The timing of the reports is crucial, in order to ensure that the information before the Sheriff is as up to date as possible. It is important to speak with all the professionals involved to ensure that the timescales are complied with. 

Our practice is to write to the medical professionals involved, to put them on notice that a report will be required in due course, as this tends to mean things run more smoothly.  We also, when requesting the medical report, ask the professionals involved to give as much detail as possible regarding the adult’s condition so that the Sheriff can be sure as to the level of incapacity.  The reports should be as detailed as possible.

The next stage 

Once the application is lodged, it is sent to all of the adult’s relatives and to the primary carer, in order that they can object to/comment on the application if they wish.  Usually there tends to be agreement as to these matters; however occasionally there can be disagreement as to the suitability of the proposed guardian or the nature of the powers sought.  (For example, family members may feel that financial guardianship is appropriate but not welfare guardianship.)  All who receive intimation are informed of the hearing date, which is usually about four or five weeks from date of lodging the application.  Anyone with an interest is able to attend and address the Sheriff on matters which they think the court should be aware of.

If there is an urgent matter which needs to be dealt with quickly – for example, the adult requires to be moved to the appropriate nursing home or funds need to be released from their bank account to meet the costs of nursing care – an interim hearing can be set down to look specifically at that issue. The Sheriff may feel it appropriate to grant one or two interim powers to allow the proposed guardian to action these matters, for the benefit of the adult

Based on the adult’s condition and circumstances, the Sheriff will decide how long the order should last.  It is usual for orders to be granted for a period of 3-5 years; however it might be granted for a longer period of time or indeed for the lifetime of the adult, depending on the adult’s circumstances.   We would attend court personally to deal with these matters and answer any questions the Sheriff may have.

Ongoing support

At Pagan Osborne we also have an experienced Private Client team who regularly deal with the administration of Guardianship Orders once they have been granted. The Office of the Public Guardian supervises those who have been appointed to look after an adult’s financial and welfare affairs and there are various matters that they require guardians to attend to which the team can assist you with. For example, if you have been appointed as Financial Guardian, we can assist you in obtaining a bond of caution (a type of insurance policy which is essentially designed to protect the adult’s finances) and completing the required inventory of the adult’s estate and management plan.  

A Financial Guardian is also required to complete annual accounts which show their dealings with the adult’s estate and our Private Client team can assist you with the preparation of these. If the guardian requires to sell the adult’s property, there is a procedure that needs to be followed before doing so which we can guide you through. We can also provide you with advice more generally about your duties when acting as a guardian. 

Need to find out more?

If you would like more information about this topic, please contact Jennifer Broatch or Cameron Shaw in our family law team. Alternatively, please call 0131 226 4081 for Edinburgh, 01334 475 001 for Fife.

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