Guardianships and Adults With Incapacity

A guardianship order is a court order that allows a person or authority to take control of the affairs of an adult who no longer has the capacity to act for themselves. These are usually required when the person does not have a Power of Attorney or the Power of Attorney does not include authority to do something which now requires to be done.

At d and h our experienced solicitors can offer advice about what to do when someone close to you loses the ability to make their own decisions.

We would always recommend that our clients have a Power of Attorney in place to ensure that their affairs can be looked after as far as possible without a Guardianship. Anyone of any age can put in place a Power of Attorney and it is very cost effective when compared to a Guardianship.

The courts have wide-ranging powers that give the authority to act on behalf of someone else including financial affairs, buying and selling property belongings, making decisions about the person’s accommodation and care, and consenting to medical treatment.

A person can be deemed to be incapacitated through mental conditions such as dementia, or sometimes through physical conditions like stroke that mean they are unable to manage their affairs.

The court must be shown evidence that a person is no longer able to act for themselves, can no longer make informed decisions or communicate the decisions, can no longer understand relevant information relating to a decision or remember the decision.

Like a Power of Attorney a Guardianship only lasts whilst the person is alive. Once they pass away their Will passes control of their assets to their Executor. If they do not have a Will then there are rules about who can apply to be an Executor.

Applying for guardianship

Anyone with an interest in an adult can apply for guardianship to look after their affairs. That could be a family member but can also extend to friends of the person.

Applying for guardianship can be a highly complex process and it is a complicated area of legal practice. d and h can help you navigate this, and our team is able to offer advice on guardianship applications.

Objections to an application can also be lodged and d and h’s highly experienced lawyers can represent you in court. We can also advise on whether or not legal aid is available for the application and, if so, what the will cover.

We can also advise on what happens if you disagree with an appointment of a guardian for someone you know..

d and h director and owner Serena Kelly Sutherland regularly deals with guardianship matters. She is part of The Office of the Public Guardian’s Professional Guardian’s scheme and is regularly appointed as Financial Guardian for adults with incapacity, who have lost their ability to make decisions for themselves where there is no one else that can help.

Guardianship is also an area of particular interest for fellow d and h director Natalie Bird.

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