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Guardianship – what it is and how to avoid it

Written by: Edward Danks
Category: Private Client
09 September 2022

When someone is no longer able to look after their own affairs, a Guardian may need to be appointed. There is also a common misconception that guardianship is only necessary for older people. Whilst guardianship interventions do occur with older people, a Guardian can be appointed for any adult who is no longer able to look after their own welfare or finances.

When should a Guardian be appointed?

A Guardian should be appointed when an individual’s welfare and financial affairs need to be managed. This may be when someone:

  • Sustains a serious illness;
  • Is involved in a serious accident
  • Develops a debilitating condition such as Alzheimer’s or Parkinson’s Disease or some other form of dementia

As you can see, none of these occasions are age related (although most forms of dementia affect older people).

What is involved in appointing a Guardian?

Appointing a Guardian involves a court process. The person wishing to be appointed must make an application to the local sheriff court where the individual lives. The application must be accompanied by two medical reports and, in the case of a welfare Guardian, a report from the Chief Social Worker of the local authority where the individual lives.

The Guardian is usually a member of the individual’s family. However, it is not unusual to have a professional person (such as a solicitor or accountant), or a member of the local authority social work department appointed.

Finally, it is normally time consuming and expensive to appoint a Guardian.

What types of guardianship are there?

There are two types of guardianships – a financial guardianship and a welfare guardianship. These are often combined to allow the Guardian to make decisions about the welfare and the financial affairs of the individual. The court that hears the application will set the Guardian’s powers and the length of time the Guardianship should remain in place. This is usually for an initial three-year period.

Is the Guardian supervised?

The local authority social work department supervises welfare guardianships to ensure the Guardian is acting in the best interests of the individual. In the case of a financial guardianship, the Guardian must supply annual accounts to the Office of the Public Guardian (Scotland). Clearly, these are serious obligations, and any potential Guardian must think carefully before accepting the appointment.

What if there are objections to the Guardian’s appointment?

Sometimes, other family members will object to the appointment of the family member who has made the guardianship application. In addition, the social work department of the local authority may object in the case of a welfare guardianship. The sheriff will consider the arguments on either side and then reach a decision on the appointment.

Is there any way to avoid a Guardian being appointed?

If the individual who is in need of a guardianship order had drawn up a Financial and Welfare Power of Attorney, there would be no need for a Guardian’s appointment. This is because the attorney can make all the decisions a Guardian can make.

Written by:

Edward Danks

Partner
After graduating from the University of Dundee, Edward joined the firm in 1996. He lives in North Berwick with his wife and family. Outside office hours, Edward is likely to be found on one of the many local golf courses. He works hard at maintaining his handicap of three. Edward is also the Head Coach for the under 9 and under 11 teams with North Berwick Girls Football Club and in his spare time enjoys five-a-side football and tennis.

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