Introduction
Guardianship is an important legal tool that allows another person or persons to manage someone’s property, financial affairs, and personal welfare when they are no longer able to do so themselves.
What is Guardianship?
Guardianship is a legal process under the Adults with Incapacity (Scotland) Act 2000 that involves an application to the Sheriff Court for an individual or individuals ’appointment as guardian for an adult who lacks capacity to make decisions on their own behalf. Anyone who has an interest in the adult’s affairs can apply to be appointed as guardian, and the Sheriff will grant the order if satisfied that the applicant is suitable and the powers are appropriate for the adult.
Applications to the court can be for an individual to be a financial guardian, welfare guardian or both. Depending on the adult’s financial circumstances, full financial powers may not be required because less intrusive options are available, such as DWP Appointeeship to manage an adult’s benefits.
Applications will include specific powers required to deal with the adult’s property, financial affairs or personal welfare. These must be considered based on individual circumstances to ensure they are the least restrictive powers required to promote and protect the adult’s wellbeing or financial affairs.
How to Apply for Guardianship?
To become a guardian, an application must be submitted to the Sheriff Court local to the incapable adult. The application must be supported by three reports. The first report is a suitability report completed by a Local Authority appointed Mental Health Officer where the application includes welfare powers or a combination of welfare and financial powers. This report will assess the suitability of the proposed guardian(s). The other two reports are medical reports to confirm the adult lacks capacity in relation to the powers being sought. One of these reports must be completed by a psychiatrist.
Once received, the reports must be submitted to the Court within 30 days of the first report being completed. The Court will then fix a hearing date. At the hearing, the Sheriff will consider the application and reports and determine whether to grant the order. The orders are time limited and must be renewed. First orders are usually granted for a period of three years.
Deprivation of Liberty and Guardianship
A particularly important and developing area within welfare guardianship is in relation to the deprivation of an adult’s liberty.
A deprivation of liberty arises where an Adult is subject to continuous supervision and control and is not free to leave (i.e., within a care home or hospital setting). In many instances, this occurs where restrictions are necessary to keep the adult safe as a result of their incapacity.
Recent case law has emphasised that any deprivation of liberty must be properly authorised, carefully justified and subject to regular review. As a result, Sheriffs are scrutinising applications closely, particularly where powers relate to residence, contact restrictions or decisions involving significant supervision and control.
The increased scrutiny has influenced the duration of orders granted. Guardianship orders are now often granted for shorter periods to allow the court to regularly review whether the Adult continues to require the guardianship and the powers originally granted.
Where deprivation of liberty is a possibility, it is essential that applications are carefully drafted to include powers appropriate to the adult’s particular circumstances. Failure to do so can create legal uncertainty for families and care providers.
When Might Guardianship be Required?
Guardianship may be required in the following circumstances: –
- Where a person has lost capacity and decisions need to be made about their welfare or finances (as a result of illness or accident)
- Where a person was born with a condition meaning they have never, and will never, have capacity to make certain decisions on their own behalf.
Additionally, many individuals are being referred to seek guardianship powers even where the Adult has previously granted a Power of Attorney. Often, this is because the Power of Attorney does not explicitly authorise the attorney to consent to a deprivation of the Adult’s liberty. If the adult has already lost capacity, it is not possible to update the Power of Attorney, and a guardianship application may be necessary to provide the appropriate legal authority to consent to a deprivation of liberty on the Adult’s behalf.
Conclusion
Guardianship is an important safeguard designed to protect adults who lack capacity while ensuring that any intervention is necessary, proportionate and for their benefit. The issue of deprivation of liberty has become increasingly significant in guardianship applications.
If you are unsure whether guardianship is appropriate in your circumstances it is important to seek professional legal advice. Our specialist team can assist with advising on and preparing applications for guardianship and will be happy to guide you through the process.
