Explainer series — changing or ending a guardianship order

If you’re looking for information about putting a guardianship in place, or an order’s ongoing management, I cover these aspects in detail in earlier posts.

Changes

The most obvious change will be if either the adult, who is the subject of the order, or the guardian move home.

First, it’s essential you update the Office of the Public Guardian (OPG) in writing and within seven days of the move.

It can be easy to overlook tasks like this at what’s already a very busy time, but I once attended a court hearing seeking the removal of a financial guardian who had not been responding to letters and had failed to submit the annual account almost a year after it was due.

It turned out the letters had all be going to their old address because they hadn’t informed the OPG.

This is an administrative change, but substantive alterations to the order itself will usually mean you’ll need to make an application to the court.

When would you need to apply to the court?

To change the guardian

Possibly you want to resign because your circumstances have changed. Perhaps you’re a parent with an order in respect of your adult child — and, as you’re getting older, it’s now sensible to have someone younger take over.

You can apply to the court to request a new guardian is appointed, allowing you to step back and, subject to any discharge requirements which I’ll cover in a moment, end your involvement.

It could also be you aren’t looking to resign, but think it would be helpful to have another guardian appointed to help with ongoing administration, or at least have someone to hand who can step in if required. A common example is when an adult’s siblings take over from a parent.

To change the type of order

In my first piece I mentioned it was common for both a financial and welfare order to be put in place. This isn’t always the case though.

With young adults especially, there may be no funds to manage, and it may be the court has granted only a welfare order. As ever, things can change over time and, while a Department for Work and Pensions (DWP)-appointed representative can help deal with benefit payments, funds can start to build up.

It is also possible that, while there are funds to manage, an adult is settled in a living environment and no big decisions need to be made about their care. In that situation, perhaps you only have a financial order in place.

If you only have one, but now require both, you’ll have to apply to the court and, as you did for the initial application, you need to arrange any necessary mental health officer (MHO) or medical reports.

If the change is to add financial powers, then you should also consider caution (a form of indemnity insurance that protects the adult’s estate against financial loss if things are mismanaged) as well as the need to prepare the inventory and management plan. I covered this in my second explainer article.

To change the specific powers

The powers granted to carry out specific actions are related to the adult’s needs at the time the order is made. It may be that they’re no longer adequate to properly look after the adult’s interests and in such cases, you can apply to the court to have additional powers granted.

The end of a guardianship order

Perhaps the biggest change is when the guardianship order ends.

There are three main reasons why this happens —

• The adult regains capacity

• The order was for a fixed term

• The adult dies

If the adult regains capacity

A guardianship order allows another person to make decisions for an adult who is unable to do so themselves.

Not all conditions impacting someone’s ability of to make decisions are permanent and sometimes the order is no longer needed.

In these cases, the adult can ask the court to bring things to a formal end, and I’ll run through what happens there shortly.

If you’re in this situation, I’d strongly recommend having the adult put a power of attorney in place just in case things change again.

The order was for a fixed term

When the order was granted, it may only have been for a fixed period — often three or five years — at which point it needs to be reviewed and, if appropriate, renewed.

To renew, you’ll need to apply to the court. You ought to lodge this application before the guardianship expires. If you miss that date, you’ll need to restart the process from scratch.

Planning is essential because you need to submit the application with updated reports confirming the adult remains incapable, and the order is still appropriate.

These reports, as with a new application, must be less than 30 days old.

If you’re renewing a financial order then, along with the MHO and medical reports, the OPG will also confirm you, as the current guardian, have complied with all reporting requirements and that there are no outstanding accounts.

There will be a hearing and, all being well, the court will grant a renewal of the order for a specific period, or indefinitely.

If the adult dies

If the adult dies, the order ends, and you should notify the OPG immediately.

The authority to make decisions about financial matters will pass to the executor of the adult’s estate and, although you may still have access to the accounts, you should not use them.

Final processes and discharge requirements

When an order with financial powers comes to an end the process is not complete – you still must prepare a final account of your activity and seek a discharge.

The final account is like the year-end account and shows a closing balance that needs to be transferred back to the adult, or their executor, when your involvement ends.

Provided there are no outstanding queries or objections, the OPG will issue a discharge — this is a formal confirmation that you have released from the duties and responsibilities of the role of guardian.

Summary

There you have it. Over the course of this series, I’ve looked at the creation, administration, and closure of guardianship orders.

The process is extremely prescriptive, and with good reason, given the breadth of responsibilities a guardian has.

If you’d like to talk to someone about a guardianship order, please get in touch. Alternatively, you can read what else we’ve been writing about on our news and views page.