What is a Guardianship Order?

It would be usual to think of the term “guardian” as someone to look after your young children should the worst happen. However, it is sometimes also the case that a guardian is required to take responsibility for the financial and/or welfare affairs of an adult who has lost capacity.

What is a Guardianship Order?

If you do not have a Power of Attorney in place and you lose capacity, a guardianship order would be required to allow someone to manage your financial and welfare affairs. This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. An adult, in these circumstances, is someone who is aged over 16 and is unable to look after their own affairs. Anyone with an interest in the adult’s wellbeing can make an application for guardianship

Before applying for a guardianship order, it is important to consider whether the appointment will benefit the adult and is appropriate under the circumstances. It is prudent to seek legal advice in this regard.

The application includes a list of the powers required to allow an individual to look after the adult’s affairs. Powers can be requested to deal with the adult’s property and/or financial affairs and/or to make decisions about their personal welfare.

Based on the adult’s condition and circumstances, the Sheriff will decide how long the order should last. It is common for orders to be granted for a period of 3 years. However, it might be granted for a longer period of time or indeed for the lifetime of the adult depending on their circumstances.

Who can be appointed as guardian?

Anyone with an interest in the adult can apply to the sheriff court for an order. This could be:

•a family member,

•the adult’s carer,

•a professional person (solicitor, accountant, etc),

•the Chief Social Work Officer of the local authority.

Several people can be involved in the application process. An application can be made to appoint more than one guardian and / or substitute guardians. It is common for applicants to instruct a solicitor to help them throughout the guardianship process.  This may include preparing the summary application which is lodged at court, obtaining the necessary medical reports and appearing before the Sheriff on behalf of the applicant.

The application process is often lengthy and expensive. Until such time as the guardianship order is granted, the adult’s assets are frozen, which can often cause problems for family members.  For example, care costs may be due but have to remain outstanding until the court has appointed a guardian to manage the adult’s finances.  For that reason, it is extremely important to consider having a Power of Attorney in place.  A Power of Attorney not only minimises cost, but provides you and your family with comfort in the knowledge that you have appointed someone you trust to attend to your financial and welfare affairs should you become incapable.

Should you require to discuss the guardianship process in more detail or should you require help with the process, we would be delighted to assist.

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For More Information Contact:
Laura King
Mobile: 07841 920 095
Direct Dial: 0131 516 5359
Email:lking@gilsongray.co.uk

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For More Information Contact:
Ailidh Ballantyne
Direct Dial: 0141 530 2037
Email:aballantyne@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.