Guardianships
What do I do if a loved one loses capacity?
When an adult (aged 16 and above) has been medically assessed as no longer having capacity to make welfare and/or financial decisions for themselves, it often falls to family members to then seek advice on how to legally make decisions on their behalf. If you find yourself in this position, the following gives some more information on what steps you should consider taking.
- Check if the individual has a Power of Attorney
A Power of Attorney document can only be entered into when the granter has capacity to do so. When a person is assessed as no longer having capacity, it is always recommended that you check if the individual has Power of Attorney already in place. If so, the person named as the Welfare Attorney can then make welfare decisions on behalf of the Adult so a guardianship is not necessary. “Welfare attorney” can cover a wide variety of day to day care decisions in respect of the individual from decisions regarding their diet, clothing etc to far more significant decisions including where the Adult should reside. All decisions must have the Adult’s best interests as the priority.
If a person is named as Financial Power of Attorney, it is important to seek advice to check if the type of Power of Attorney document allows them to continue to act in that capacity after the grantor has lost capacity.
If there is no Power of Attorney in place, the next step would be to seek advice in respect of applying to be appointed as Guardian of the Adult in question. - If there is no POA, a Guardianship Order could be considered
A guardianship order is an order granted by Court that gives specified powers to a third party to make decisions on behalf of a person who no longer has capacity to make those decisions for themselves.
Types of Guardianship Orders
There are two types of guardianship orders – Welfare Guardianship and Financial Guardianship. It is quite common to seek both types of orders within the one application.
Welfare Guardianship would cover a list of welfare powers that can cover a variety of day to day issues. The powers should be tailored to the Adult’s specific needs. Whatever the powers, they must be considered absolutely necessary to that Adult’s needs.
Financial Guardianship allows the person to deal with the Adult’s finances on their behalf. An example of this would be managing any benefits the Adult receives, payment of any care services such as care home costs from the Adult’s resources etc. Again, the powers listed must be consistent with the needs of the Adult.
Financial Guardians have the added responsibility of being accountable for any spending of the Adult’s finances. This is safeguarded by the Office of Public Guardian. Financial Guardians must provide annual accounts to the Office of Public Guardian showing how the Adult’s money has been used for that reporting year. When an Adult has savings or owns property etc, the Financial Guardians also have to apply annually for insurance, known as a Bond of Caution, in respect of the Adult’s estate.
Who can apply for Guardianship?
Anyone can apply to be appointed as a Welfare or Financial Guardian to the Adult. The most common example is a family member seeking appointment. Regardless of who applies, the Court will consider whether the applicant is suitable for the appointment.
When it comes to Financial Guardianship, if the applicant has previous convictions or a history of debt issues including bankruptcy, they are unlikely to be considered as a suitable candidate.
In some cases where there are no individuals available to take care of the Adult, or if there is a history of high conflict within a family, the Court can consider whether the social work department of the Local Authority should be granted Guardianship.
What is the process?
The process is by Summary application to Court. The application itself will provide the Court with details of the applicant, their relationship to the Adult and details of the level of involvement the applicant already has in providing care to the Adult.
The application is then supported by two medical reports and one Mental Health Officer report.
One of the medical reports must be from a psychiatrist who meets the legal requirements of the Adults with Incapacity (Scotland) Act 2000. The second report must be from another medical professional, often the Adult’s GP. The purpose of the medical reports is to confirm that the Adult lacks capacity.
The third report is provided by a Mental Health Officer who is allocated by the local council area where the Adult resides. This Mental Health Officer will speak with the applicant and any other persons with close relationships to the Adult such as parents or siblings. They will also speak with other professionals involved in the care of the Adult such as any allocated social workers. They will then make a recommendation as to the suitability of the applicant and the powers sought in the application.
All three reports are then submitted with the application to Court.
A hearing is then assigned and the Court considers at that point whether to grant the orders sought or not.
Once granted, the order is sent to the Office of Public Guardian and registered with them.
How long can a Guardianship last?
Guardianship orders only run for a specific period of time. The Court has discretion as to how long a particular order should run depending on the circumstances of each case and, in particular, the age of the Adult. The most common duration is five years however for younger Adults, a shorter period of three years is more likely.
What do I do when the order is due to expire?
When an order is due to expire, you will receive notification from the Office of Public Guardian some months in advance. It is recommended that you get legal advice at that point to begin the process of renewing your application if you want to remain appointed.
How much does it all cost?
Legal Aid funding can be available to applicants for Guardianship cases provided certain criteria is met. This can be discussed with your solicitor at your initial appointment to check if you are eligible for funding assistance.
How do I get started?
Contact our family law team at BBM Solicitors for a no obligation, confidential discussion. We can talk to you about the Adult’s circumstances, costs and timescales for progressing matters.