Navigating the complexities of Guardianship Orders in Scottish Law is a crucial task for those who may need to put one in place. In this guide, d and h offer practical insights into the nuances of this legal instrument. We focus on its implications, the application process, challenges, and the professional guidance provided by our dedicated team.
The Powers of a Guardianship Order
At the core of a Guardianship Order lies the granting of significant powers to designated individuals or authorities on behalf of someone who is incapacitated. These powers include managing financial affairs, facilitating property transactions, making decisions about accommodation and care, and providing consent for medical treatment.
A financial guardian can make decisions regarding finances and property belonging to the incapacitated adult. A welfare Guardianship Order provides the power to make decisions regarding the well-being of an incapacitated adult.
If required, powers can be applied for separately but generally are granted together within the same application to the sheriff court.
When is a Guardianship Order Appropriate?
There are a range of circumstances in which a Guardianship Order may be appropriate. The most important factor when initiating a Guardianship Order is assessing an individual’s capacity to make decisions. Consider situations where individuals face challenges in making decisions or managing their affairs. This may include adults unable to seek appropriate help or give consent to services.
For example, mental conditions like dementia or physical impediments such as strokes may hinder an individual's ability to manage their affairs. You may also know a young person (over 16) with learning disabilities struggling to handle their affairs or have concerns about the conduct of a current attorney for an adult. Providing compelling evidence that a Guardianship Order will benefit an individual is essential, demonstrating the person's compromised decision-making, communication, comprehension, and memory abilities.
Typically, a Guardianship Order is granted for three or five years. In certain circumstances, this may be extended, however, this would be decided by the sheriff appointing the order.
How to Apply for a Guardianship Order
Before proceeding with a Guardianship Order application, it is recommended to seek legal advice to ensure that the appointment is beneficial for the concerned adult and aligns with their specific circumstances. To initiate the process, individuals typically submit a 'summary application' to the local sheriff court in the incapacitated adult's residing area. Many opt to engage a solicitor to handle the application process on their behalf.
Supporting documentation for the application includes two medical reports and an additional report tailored to the sought powers, such as welfare, financial, or a combination of both. In cases where welfare powers are sought, the report is usually prepared by a mental health officer from the local council. Once granted by the sheriff, the order explicitly outlines the actions permissible for the appointed individual, referred to as a guardian.
Who Can Apply to be a Guardian?
Any person has the option to apply to become a welfare guardian. In cases where no other application is forthcoming, and welfare guardianship is deemed essential, the Chief Social Work Officer of the local council is authorised to apply.
For financial guardianship, the application can be made by any individual, including professionals like solicitors or accountants. However, if no one else is willing to apply or if the order is deemed necessary for the protection of the adult, their property, or finances, the local council is obligated to initiate the application for financial guardianship.
Navigating Challenges and Addressing Objections
Given the intricacies involved, applying for guardianship is a nuanced process. Challenges and objections may arise, and d and h's adept solicitors are well-equipped to handle such scenarios. Our team can represent you in court, ensuring that your concerns are addressed with the utmost professionalism.
Even with the best intentions, the appointment of a guardian may not always align with the expectations of the concerned parties. In such instances, d and h offer professional guidance, highlighting the available options and helping you navigate the complexities of disagreements with appointed guardians. Our commitment lies in fostering resolutions that prioritise the well-being of the individual under guardianship.
Seeking Support Regarding a Guardianship Order?
The process of establishing Guardianship Orders in Scottish Law demands careful consideration and trusted guidance. From the significant powers granted by the order to the eligibility criteria for guardianship, our dedicated team is poised to navigate these intricacies with precision.
If you find yourself facing the responsibility of initiating a Guardianship Order, we encourage you to seek legal advice to ensure the best outcome for the concerned individual. Whether it's guiding you through the application process, addressing challenges, or representing you in court, our commitment is to safeguard the well-being of those under guardianship.
Get in touch with d and h today for professional legal assistance in navigating the complexities of Guardianship Orders in Scotland.