Case Study
Financial and Welfare Guardianship in Scotland
Monday 22nd September 2008
The Adults with Incapacity Scotland Act 2000 which came into force on 1/4/2002 introduced the legislation relating to the appointment of Financial and/or Welfare Guardians.
TC Young has considerable experience of cases where it has been appropriate to seek the appointment of an Adult's financial and/or welfare guardian.
Usually the Adult's relative will instigate proceedings, and will be appointed as Guardian, however, if the Adult doesn't have any relatives, proceedings can be initiated by someone else, eg. Housing Associations. In such circumstances, professional help is required and a solicitor from this firm can be appointed as the Guardian. The guardian's appointment should ease administrative and practical difficulties for the housing association. An example of this is when a tenant has learning difficulties or is elderly.
The procedure for appointment is a Summary Application which has to be lodged in court detailing the Adult's present situation, i.e. where he lives, his medical condition, family background and personal circumstances. The Application also details the powers sought by the Applicant.
The Summary Application is submitted to court with two medical reports, one from the Adult's GP and one from a psychiatrist, and where the application relates to the personal welfare of the Adult then a report in prescribed form from a Mental Health Officer has to be submitted too. This report contains the Mental Health Officer's opinion as to (a) the general appropriateness of the order sought based on an interview and assessment of the Adult, and (b) the suitability of the individual(s) nominated in the application to be guardian(s). A financial reference for the applicant should be lodged too.
Where the application relates only to property/financial affairs, a report in prescribed form based on an interview and assessment of the Adult can be made by a person who has sufficient knowledge to make this report, such as a social worker or a solicitor.
The timing of these reports is crucial. They all must be dated and submitted to court together with the application within 30 days of the date of the first report.
Once the application is warranted by the court the Sheriff fixes a hearing and the application is served on all relevant bodies, being the Adult, his nearest relative, his primary carer, any existing guardian or attorney, the Office of the Public Guardian, where appropriate the Mental Welfare Commission, again where appropriate the Local Authority, and any other party directed by the Sheriff.
If the Adult lives in an authorised establishment, notice has to be served on the establishment.
When service of the application on the Adult would be particularly upsetting for the Adult this service can be dispensed with if the Sheriff so authorises. To support the application for dispensing with this service, two medical certificates are required.
A hearing will take place in private, ie. not in open court, in the Sheriff Court within 28 days of the warrant. At that hearing any party on whom the papers have been served will have the opportunity to discuss the situation with the Sheriff and make his views on the application known.
If the Sheriff grants the application in the situation of a Financial Guardian caution, which is an insurance policy against the guardian misappropriating the Adult's money, is required and the Sheriff will specify the amount and the period of caution. This has to be lodged with The Office of the Public Guardian before the Financial Guardian has legal authority to act.
Each application is tailored to suit the Adult's individual needs and the length of appointment of the Guardian very much depends on the Adult's personal circumstances. If the Adult's medical condition is life long a permanent appointment can be made, otherwise the Adult's estate would incur expense every five years or so for the re-appointment of the Guardian.
A Sheriff can order that the expenses of the appointment and action be paid from the Adult's funds.
Once appointed the Guardian has to, within prescribed time limits, prepare an inventory of the Adult's estate; thereafter prepare a Management Plan for the Adult's estate; and then annual accounts need to be lodged with The Office of the Public Guardian. The Office of the Public Guardian has to approve each of these three steps as and when they happen.
During the term of his appointment, the Guardian could have power to manage the Adult's finances and/or make welfare decisions. The exercise of these powers must (1) benefit the Adult; (2) take account of the Adult's past and present wishes; (3) be the least restrictive option available; (4) be done in consultation with other relevant people; and (5) encourage the Adult to exercise whatever skills he has, as far as possible.
The procedure and steps to be taken for appointment are formidable and expensive. Therefore, it is worth remembering that before capacity is questionable, the Adult can grant a power of attorney in favour of individual(s) of his own choice, incorporating welfare and or financial powers to him/them by a much simpler and thus less expensive method. With easier subsequent accounting arrangements.
TC Young is registered with The Scottish Legal Aid Board to provide legal advice and assistance and legal aid, if appropriate. Legal Aid is appropriate without a financial assessment for applications involving welfare guardianships. This can either be a welfare guardianship application on its own or combined financial and welfare. If the application relates to financial guardianship alone then a financial assessment is required and eligibility for legal aid is determined.
The above is brief summary of the procedures involved in appointing a guardian. This type of legal action is required more often now as there are an increased number of people being diagnosed with a dementia. We appreciate that when families/friends are faced with this, it is an extremely worrying time. Do not hesitate to contact us if you require advice. It may also be useful for you to speak to our member of staff who is an Alzheimer Helpline volunteer. In the first instance please contact Lesley Hurst.
Lesley Hurst, Partner
Direct Dial: 0141 225 2579 or Email: lah@tcyoung.co.uk
Isabel Ewing, Partner
Direct Dial: 0141 225 2563 or Email: mailto:mail@tcyoung.co.uk
Please note that this briefing is not a comprehensive statement of the law. Legal advice should be taken on individual circumstances