Guardianship

Guardianship Order is often appropriate should an individual lose the capacity to make important decisions, usually by way of mental or physical illness. A Guardianship Order is different from a Power of Attorney. An individual grants a Power of Attorney before that individual becomes incapable.

A Guardianship Order is an appointment usually made by the Sheriff Court which authorises a person to take action or make decisions on behalf of an adult with incapacity. A Guardianship Order can be in relation to property and financial matters, personal welfare, or a combination of these. Guardianship is often suitable in a case in which an individual has long-term needs in relation to such matters. Guardianship can be applied for when a person is over the age of 16 years. However, for young adults about to reach the age of 16 years, Guardianship can be applied for in the 3 month period leading up to their 16th birthday.

In most cases, a family member or a friend would apply to the Sheriff Court to become a welfare and/or financial guardian. It is possible for someone acting in a professional capacity may make the application, e.g. a solicitor or accountant. The applicant is usually an individual unless a local authority has assessed the needs of the individual if there is no one else to do so. In these circumstances, the local authority can be appointed.

Before applying for a Guardianship Order, the applicant needs to be confident that the order would be the least restrictive way of managing the individual’s affairs and that it would benefit the individual.

Financial guardianship powers can include borrowing money on behalf of the individual, paying debts and liabilities, dealing with income tax, and operating bank accounts.

Welfare guardianship powers can include making a decision as to where the adult should live, taking the adult on holiday, arranging any education or training, and consenting medical treatment.

Once a guardian has been appointed, it will be necessary for the guardian to take steps to ensure that the necessary persons, including family members, banks and any relevant financial authorities, about matters such as financial powers, and relation to welfare powers, keep parties such as care providers and care managers may require to be notified.