With Halloween just around the corner, it’s the perfect time to talk about something that can seem a little spooky – guardianship!
We’re not talking about ghosts, ghouls or things that go bump in the night. We’re talking about something that many people have never heard of until they find themselves facing it or are told they need to apply for it.
For many families, the word guardianship can feel frightening. There may be unfamiliar legal terms and you might not be sure where to start or what it all means.
What is Guardianship
A guardianship order is a court order which authorises a person to act and make decisions on behalf of an adult with incapacity. In Scotland, an adult is a person who is 16 years old and over. The law relating to guardianship is governed by the Adults with Incapacity (Scotland) Act 2000. It is important to seek legal advice prior to making an application for guardianship to ensure that the appointment will benefit the adult and that no other means provided for under the Act would be sufficient to enable the adult’s interests to be safeguarded and promoted.
The guardianship process is often a long, drawn-out process, which is why it is so important to create a Power of Attorney if you have the capacity to do so. Taking steps early can help prevent things from becoming frighteningly complicated further down the line.
So, grab your pumpkin spice latte, leave the ghosts and ghouls at the door and have a read through our step-by-step guide to how we approach guardianship here at TC Young.
How We Approach Guardianship at TC Young
Step 1: We would meet with the person applying for guardianship, discuss the process and gain an understanding of the adult for whom the application is being made and their circumstances. Meetings can take place in our office or via telephone, zoom, video call etc.
Step 2: We would then apply for Legal Aid, which is available to cover the majority of the cost of the guardianship application where welfare powers or a combination of welfare and financial powers are being sought. Depending on the adult’s circumstances they may also be eligible for Advice & Assistance to cover the initial work involved. If you are unsure whether the adult would be eligible, we would be happy to discuss this further with you.
Step 3: Once Legal Aid has been granted, we will draft a Summary Application. This is the legal document which is submitted to the court. It sets out the various financial, welfare or financial and welfare powers that the applicant is seeking. Types of powers may include assisting the adult with their finances or deciding what care and accommodation is appropriate. Once the draft is completed we will send a copy to you for approval and discuss any amendments that are required.
Step 4: Once you are happy with the Summary Application, we will instruct the reports. In an application for guardianship, three reports are required. Medical reports are required from the adult’s GP and a Psychiatrist to assess the mental capacity of the adult. Another report is required from a Mental Health Officer, who will provide a report on your suitability as guardian.
Step 5: Once we have received all the reports they have to be lodged with the Court, along with the Summary Application, within 30 days of the date of the first report. If the Sheriff is happy with the application they will warrant it, fix a hearing date and return the papers to us to serve on all interested parties. These parties all have 21 days in which they can object to the application and lodge any formal objections with the Court.
Step 6: At the hearing the Sheriff will decide whether to grant the application and whether all or some of the powers should be granted.
Step 7: Once the Sheriff grants the order, the Guardian may need to obtain a Bond of Caution (pronounced cay-shun), which is an insurance policy to protect the adult’s finances from misappropriation.
Step 8: Once the Bond of Caution is in place, The Office of the Public Guardian (the body who protects people who lack capacity) will send a Certificate of Authority to the Guardian that allows them to deal with the adult’s finances, welfare or both.
Don’t let the unknown haunt you. Should you have any queries about Guardianship, Power of Attorney, or any other form of intervention please contact a member of our team who will be happy to assist.
