These decisions can relate to paying bills, dealing with bank accounts, or care and personal welfare matters.
In this article, we explain the background, answer some FAQs, and look at the process of becoming a guardian.
First, let’s look at what we mean by specific terms.
What is an adult in this context?
It’s not surprising people often think guardianships primarily apply to someone elderly, including those diagnosed with dementia.
In reality though, they can apply to anyone aged 16 and over. We see guardianships used, for example, as a way of supporting a smooth transition to adulthood for children who have additional support needs.
What is incapacity?
Incapacity is when someone is unable to act, make, communicate, or understand decisions, or retain the memory of decisions because of mental incapability. It also applies if someone can’t communicate a decision because of a physical disability, even when they have human or mechanical support.
What types of guardianship orders are there?
Like powers of attorney, guardianship orders fall into two distinct types: welfare and financial. An order can — and often does — include both.
Welfare powers allow the guardian to decide, for example, where the adult should live and make decisions about medical treatment.
Financial powers allow a guardian do things such as operate bank accounts and sign documents on the adult’s behalf. A financial guardian also has various administrative responsibilities such as planning how to manage the adult's estate and submitting annual accounts. More on that in our next article.
What powers does a guardian have?
With a guardianship order a sheriff will only grant powers that are seen as necessary and appropriate. The focus is on the adult’s needs and orders are regularly tailored to meet specific requirements.
What they cover can be incredibly diverse.
There are some powers that we see regularly included, such as those dealing with care home arrangements and pensions. Others we see less often. These include access to and use of social media, or decisions relating to education and training.
What’s the process for putting a guardianship in place?
Seeking a guardianship order can be a long and complex court process, not least because there’s a lot of up-front work needed to pull together all the information the sheriff needs to consider.
Who can make an application?
There is no set list, but whoever’s applying needs to have an interest in the adult’s affairs. Generally this means they are family members or certain professionals, for example if social workers have been involved.
What is required before you get into court?
Before you can apply, you need to have specific documents prepared. These include two medical reports confirming the adult is incapable, one of these must come from a psychiatric specialist, as well as a report from a specially trained social worker known as a mental health officer.
If you’re applying for a financial order, you may also need to complete a declaration which, as well as asking for information about you, explains what will be expected of you in your guardian role. You sign it to show you understand these responsibilities and are happy to proceed.
How long does it take to get these documents?
It varies. It’ll depend on when doctors and the mental health officer are available.
All three reports must be less than 30 days old when they’re submitted to the court, so there is often quite a tight timescale once the first report is received. As you’d expect, co-ordination is vital to make sure everything is ready on time.
What happens once the application is submitted to the court?
The court will set a hearing date.
There are certain people and organisations who’ll need to know about the hearing so they can be involved if they want to be. These include the adult who is the subject of the order, the chief social worker for the appropriate local authority area and the Office of the Public Guardian (which oversees and regulates all guardians). The Mental Welfare Commission for Scotland may also need to be involved.
The sheriff considers the application and the reports, together with the views of anyone attending the hearing, before deciding whether to grant the order.
The sheriff will decide —
Which powers to grant
How long the order will last for (a fixed number of years or indefinitely)
And if it’s a financial order, whether a bond of caution is needed — this is a form of indemnity insurance that protects the adult’s assets’ value if the guardian mismanages things
What does it cost?
It can vary, but you’ll need to consider legal fees, as well as costs for medical reports, court fees, caution and OPG registration fees. You’re likely to pay far less for a power of attorney. Of course, as I mentioned at the start of this article, a guardianship is used because you can’t put a one of these in place.
Powers of attorney are essentially a safety net you set up many years before you’d expect to use them. They can be ready much quicker than a guardianship order too: it’s not unusual to have these drafted and signed in as little as a week or so.
Our team can talk things through with you. Meanwhile, in the next article we’ll look at what happens once the guardianship order has been granted.
