A Guardianship Order gives authority to a person to act and make certain decisions on behalf of an adult with incapacity. These can be decisions relating to the welfare of the adult, or relating to the adult’s finances. It is common for clients to consider applying for a Guardianship Order if a relative is unable to make decisions for themselves – because of an illness or accident for example – and there is no Power of Attorney already in place.
It is recommended that you seek legal advice from an experienced Private Client lawyer before applying to the sheriff court for a Guardianship Order, to be sure you are eligible to apply and that doing so would be in the adult’s best interests. We can support you throughout, including advising on the strength of your application, preparing your application and providing ongoing guidance on your responsibilities as guardian.
To discuss your circumstances with our professional and friendly Private Client Team, please get in touch.
Is a Guardianship Order appropriate in my circumstances?
The court will only grant a Guardianship Order if it will benefit the adult and it is considered the best way to achieve that benefit. Where possible, the past and present wishes of the adult will be taken into account, as well as the views of close relatives and carers, to decide if the Order is appropriate.
When you contact our Private Client lawyers, we will take the time to understand your circumstances thoroughly and provide an honest assessment of whether it’s likely that the Order will be granted. We have extensive experience advising clients in this area and understand the principles the court applies to every case. If we believe a Guardianship Order is not the best solution, we will advise on the other options open to you.
How do I apply for a Guardianship Order?
The application process is complex and so support from an experienced legal practitioner is recommended. We can draft the application on your behalf, setting out clearly the powers you wish to be granted. You must include three particular reports with your application: two medical certificates of incapacity and one suitability report to be completed by a Mental Health Officer from the relevant Local Authority. We will arrange for these to be prepared within the required timeframe. Our team will then submit your application to your local sheriff court and keep you updated as your application progresses.
What are my responsibilities as a guardian?
If you are appointed as a financial guardian, you will have a range of administrative duties to complete, including preparing annual accounts, an inventory of the adult’s estate and a management plan setting out how you intend to manage the adult’s affairs.
In every case, whether given financial, welfare or combined powers, you will have a responsibility to act in the adult’s best interests and within the scope of your powers. If any concerns are raised by the body responsible for supervising your role as guardian, it can investigate and take action to protect the adult.