"Help! My Aunt Has Dementia and No Longer Understands". Under Adult with Incapacity Legislation - Would a Guardianship help?
Jean recently visited the office looking for advice on how she can help her elderly auntie, who's in hospital. The medical staff caring for Jean's aunt believe she no longer has capacity to make decisions on her own behalf but have told Jean that she has no legal authority to make decisions for her aunt.
Jean sought legal advice, which confirmed that as her aunt's nearest relative, she would be the obvious choice to be appointed as her Financial and Welfare Guardian.
Jean: So how would I go about applying for Guardianship in Scotland?
Our team: First of all, we would apply for Legal Aid on your aunt's behalf to fund the cost of the court action. Anyone who needs a Financial and Welfare Guardian is automatically entitled to Legal Aid from the Scottish Legal Aid Board to finance the court action. This is irrespective of how much money the person has - so even though your aunt owns her own house and might have other money in the bank and a pension, she will still be entitled to Legal Aid without any financial assessment being done.
The Legal Aid covers work in connection with the court application and the initial work up to the point Legal Aid is granted would either be covered under the Scottish Legal Aid Board's Advice & Assistance scheme or would be privately funded. Once Legal Aid is granted, we can start the court proceedings.
Jean: What does that involve?
Our team: We'll draft what is called a Summary Application. This is the document which is sent to the Sheriff Court asking for your appointment as your aunt's Financial and Welfare Guardian. It sets out the financial and welfare powers you are seeking and provides background information on your aunt's health and circumstances.
Your aunt's family history will be detailed along with a detailed list of her financial assets. Once the Summary Application is drafted we would let you see this to approve before it is sent to anyone else.
Jean: Who else gets to see it then, once I approve it?
Do you know who else the Summary Application would be sent to?
If this scenario sounds familiar and you'd like some further advice on your own circumstances, please get in touch.