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What happens when someone cannot manage their own affairs? Who can make decisions for that person? Who can manage their property and finances and decide on things like medical care and where a person should live? Our solicitor, Rosslyn Fowler, discusses reasons for considering guardianship.

If a Power of Attorney has been made, then the Attorney steps up and makes these decisions.  But if there is no Power of Attorney in place and a person cannot make a Power of Attorney, then the Court needs to become involved and grant either a Guardianship Order or an Intervention Order.

What is a Guardianship Order?

A Guardianship Order gives an appointed person similar powers to that which an Attorney would have from a Power of Attorney.  The appointment of a Guardian is, however, usually restricted to a few years and the Guardian must comply with the regulations set out by the Office of the Public Guardian.  Accounts must be kept and lodged, and a management plan for the finances of the Adult involved must be lodged with the Public Guardian’s office.

An Intervention Order is very similar to a Guardianship Order, but it is restricted to seeking the Court’s approval to do one thing for an Adult, e.g., sell a house or move a person into a different home.  Once the action sought in the Order has been completed, then the Order is finished.  It does not give anyone ongoing powers over an Adult’s welfare or their finances.

Applying for a Guardianship Order

The Application process for both an Intervention Order and a Guardianship Order is primarily the same.  The proposed Guardian must outline, very specifically, what powers they are seeking from the Court and have justification for them.  The main principle of the Adult with Incapacity Act is that whatever action is taken for someone who does not have capacity, it should be the ‘least intervention possible’.  Therefore you cannot simply ask the Court for blanket powers if you have no proper justification for them.

The Guardianship, like a Power of Attorney, is split into financial and welfare powers.  The financial powers cover property, finances, investments, benefits, pensions and so on.  The financial powers would cover the sale of a house and the purchase of another property if necessary.  The welfare powers allow the Guardian to make decisions about where a person should live, what care (nursing and medical) a person should have and so on.

The Application is tailored to suit the individual circumstances of the Adult.  However, you must remember that if you do not have a power granted by the Court, then you cannot make a decision for the Adult in that regard.  A Guardian would need to go back to the Court and ask for an amendment to the Order to add in the missing power.

Who Can Apply for A Guardianship Order?

The person who usually applies to be a Guardian is usually a close family member, spouse, adult child, brother or sister.  In the case of a young person, their parents would normally apply.  The law dictates that the person applying for the Guardianship Order needs to have ‘an interest in the estate of the Adult’.  The person applying cannot therefore simply be a friend or a solicitor unless they can show they have a real interest in the Adult’s estate.  The person who makes the Application doesn’t need to be the proposed Guardian.  A family member can make an Application to have someone else appointed, e.g. a solicitor.  It is for the Court to ultimately decide if the Guardian is suitable.

It is normal to have more than one Guardian or to have a substitute Guardian named so that there is always a Guardian able to act.  Joint Guardians can act together or independently, whereas a substitute Guardian would only come into play if the principal appointment could not act at all.

Along with the Application that is submitted to Court, the Applicant must also submit 2 medical reports that confirm the Adult doesn’t have capacity (one of these reports must be from a doctor with a psychiatric qualification).  There is also a suitability report submitted.  If there are welfare craves in the Application, then a Mental Health Officer from the local social work department is appointed to make investigations and prepare a report.  The Court can, if it wishes, also ask for any other reports thought necessary.

In the Application, the proposed Guardian must be described and their suitability to be appointed outlined.  A person who is bankrupt cannot be a financial Guardian but can still be a welfare Guardian.

The Application Process

The Application process is complex and lengthy.  The relevant reports must be timed so that they are all undertaken within 30 days and submitted to Court.  Then the Court will assign a Hearing and copies of all the reports and the Application must be sent to all interested parties ( close family, carers of the Adult, the Public Guardian’s office, the Adult themselves and the Mental Welfare Commission if welfare craves are sought).   At the Court hearing, the Sheriff will consider the Application and if satisfied, will grant the Order.  A Sheriff can ask for more information or if there are objections to the Application, then another Hearing with evidence can be assigned.

If the Court is satisfied and grants the Order, usually an Order to find Caution (Kay-shun) will be made.  This is essentially an insurance policy to safeguard the Adult’s estate.  Depending on the size of the Adult’s estate this can cost between £11 and £900.  A Guardian will also have to complete documentation for the Office of the Public Guardian outlining their intentions and pay a fee to the Public Guardian.  The Public Guardian will then issue a formal certificate of Appointment that a Guardian will need to produce to confirm their ability to act.

There is a considerable amount of work and cost involved in a Guardianship Application.  It also takes a significant period of time, months, to be completed.  This can be distressing as usually there are decisions that need to be made for a person hence the need for a Guardianship – but these cannot be made until the Court grant the Order.  There is a provision to ask the Court to grant interim orders – orders that can be made pending the final decision being made.  You must, however, satisfy the Court that these are absolutely necessary and will benefit the Adult.  The Court does not grant interim orders lightly.

They say prevention is better than cure, it is better to be prepared than seek a remedy.  If you have capacity, then making a Power of Attorney saves a lot of time and upset at what can be a difficult time.  But if there is no Power of Attorney then there is still a route that can help.

 Get in Touch

If you need advice or assistance regarding Guardianship for a loved one, contact us today. Our empathetic and understanding solicitors will be able to assist you and advise on your specific circumstances. To get in touch, please call 01292 388048 (Ayr Office), 01465 915042 (Girvan Office) complete our online contact form.

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