Many of you may have seen the latest headlines regarding the #FreeBritneySpears movement where her fans are concerned about her father acting as her Conservator. Conservatorship is an American legal concept whereby the court appoints a person to manage a person’s affairs if they are deemed to be incapable.
The equivalent of Conservatorship in Scotland is known as 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. The guide below, however, highlights the main stages of the process.
Stage 1: Meet with the person applying for guardianship (“the Applicant”), discuss the process and gain an understanding of the Adult and their circumstances. Ordinarily we would meet with you in our office, however due to the current restrictions this can be done via telephone, zoom, video call etc.
Stage 2: Apply for Legal Aid, which is available to cover the majority of the cost of the Guardianship application on a non-means tested basis where the application is for welfare guardianship only or a combination of welfare and financial powers. 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.
Stage 3: Once Legal Aid is granted, prepare the Summary Application. This is the legal document which is submitted to the court. It sets out the various powers that the Applicant is seeking. 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.
Stage 4: Instruct the supporting reports. Three reports are required: two medical reports from the Adult’s GP and a Psychiatrist to assess the Adult’s capacity to make decisions on their own behalf in relation to the power being sought; and a report from a Mental Health Officer, who will provide a report on the Applicant’s suitability as Guardian and whether the powers sought are appropriate in all the circumstances.
Stage 5: Once all reports are received, the application and supporting reports require to be lodged with the Court, within 30 days of the date of the first report. If the Sheriff is happy with the application he 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.
Stage 6: The Hearing, at which the Sheriff will decide whether to grant the application, in full or in part.
Stage 7: Once the Sheriff grants the order, the Applicant may need to obtain a Bond of Caution (pronounced cay-shun), which is an insurance policy to protect the Adult’s finances from misappropriation.
Stage 8: Once the Bond of Caution is in place, The Office of the Public Guardian (which supervises all guardians in Scotland and keeps a register of all appointments) will send a Certificate of Appointment to the Applicant, which can be exhibited to third parties to confirm their authority to deal with the Adult’s finances, welfare or both.
As you will see, an application for guardianship involves several stages and can take a number of months to complete. Our AWI Team have vast experience of guiding clients through the process and will keep you informed at all stages of your application. For further information, please get in touch.
