When a loved one does not have or loses the ability to make decisions for themselves due to illness, disability, or an accident, it can be an overwhelming and emotional time for families. In Scotland, a Guardianship Order provides a legal framework to protect and support individuals who are no longer able to make decisions about their welfare or their financial affairs, on their own. This guide will explain what a Guardianship Order is, how it is implemented, and in what circumstances it may be necessary.
What is a Guardianship Order?
A Guardianship Order is a legal authority granted by the court that allows a designated person, known as a guardian, to make decisions on behalf of an adult who lacks capacity. This can cover financial, property, personal welfare, or a combination of these matters. Guardianship Orders are commonly used when long-term decision-making support is required, rather than short-term or one-off decisions which can be dealt with by an intervention order.
When is a Guardianship Order Necessary?
A Guardianship Order may be required when an adult cannot manage their affairs due to:
- Dementia or Alzheimer's disease
- Severe learning disabilities
- Brain injuries resulting from an accident
- Mental health conditions affecting decision-making abilities
- Other medical conditions that impair cognitive function
If there is no existing Power of Attorney in place, and decisions need to be made regarding the individual’s finances, healthcare, or living arrangements, applying for a Guardianship Order may be the best course of action. A person cannot grant a Power of Attorney if they have lost capacity.
How to Apply for a Guardianship Order
The process of obtaining a Guardianship Order in Scotland involves several key steps:
- Assessment of Capacity – Two medical practitioners will be required to confirm that the individual cannot make decisions.
- Application to the Court – The person applying (the prospective guardian) must apply to the Sheriff Court.
- Supporting Reports – Alongside the medical reports, a Mental Health Officer report is required detailing the need for guardianship and the suitability of the applicant.
- Court Hearing – The court will review the application and, if satisfied, grant the Guardianship Order.
- Supervision and Review – Once granted, the guardian is required to report to the Office of the Public Guardian and other authorities, depending on the type of guardianship.
Who Can Be Appointed as a Guardian?
A guardian is usually a close family member, such as a spouse, parent, or adult child. However, in some cases, a close friend, solicitor or professional guardian may be appointed if no suitable family member is available. The court will always prioritise the best interests of the individual in selecting a guardian. If there is no one suitable to be welfare guardian, then the chief social worker will act as welfare guardian.
Responsibilities of a Guardian
Once appointed, a guardian has a legal duty to act in the best interests of the person under their care. This may involve:
- Managing finances and property
- Making healthcare and medical treatment decisions
- Deciding on living arrangements and personal welfare
- Ensuring that the individual’s rights and dignity are respected
Guardians must act responsibly and may be required to provide regular reports to the relevant authorities.
Alternatives to a Guardianship Order
In some cases, a Guardianship Order may not be necessary. If the individual had previously set up a Power of Attorney before losing capacity, their appointed attorney can make decisions on their behalf. Additionally, an Intervention Order may be a suitable alternative for one-off decisions rather than ongoing management. In some financial situations, it may be more appropriate to apply to the Office of the Public Guardian for Access to Funds or become an Appointee to deal with benefits.
Seeking Legal Advice
Applying for a Guardianship Order can be complex and time-sensitive. Seeking legal advice from experienced professionals can help ensure the process runs smoothly. At d and h, we have extensive experience in handling Guardianship Orders and can provide guidance and support throughout the application process.
If you require legal advice on guardianship matters, contact d and h today to discuss your situation and find the best solution for your loved one’s needs.