civil law

Guardianship

This area of the law applies equally to adults as it does to children. A Guardian requires to be appointed when an individual can no longer look after their own affairs or take a part in making decisions for themselves. Incapacity comes in many forms and as a result of illness, accident or disability.

We have considerable experience of applying for Guardianship for both adults and children for a wide range of reasons. A Guardianship application can be made to appoint a Financial Guardian, a Welfare Guardian or both combined.

The purpose of a Guardianship Order is to appoint a responsible person or persons to look after the interest of someone unable to do so themselves. In this day and age most of us should consider putting in place a Power of Attorney (POA) covering both financial and welfare provision to ensure our interests are protected in the event we are incapacitated. A POA is considerably less expensive than a Guardianship Order and if in place can be used without any delay.

We see more and more examples of occasions where there is no alternative to applying for Guardianship.

We have outlined the steps required to set up a Guardianship Order for an Adult with Incapacity.

Setting up a Guardianship for an Adult with Incapacity

Setting up a Guardianship is quite a lengthy process because there are many different stages to go through prior to submitting the application to court. Once in court it will depend on many factors what the procedure will be, not least of which is whether the application is opposed. At best, without any unforeseen delays, it can take from three to six months before a Guardian has full authority to act. We advise setting up a Guardianship for combined financial and welfare powers.

Before the application can be made to the court, we require two medical reports from different doctors followed by a report by a Mental Health Officer who is familiar with the adult’s case history. This will use the information to form a suitable application to Court to have the Guardian or Guardians appointed. The application should include an inventory, as far as can be estimated, of the adult’s estate. After the initial application has been made the court will set a date for the hearing to appoint the Guardian (the nominated Guardian does not have to attend court, the solicitor acting may deal with the matter on their behalf). Notification of the application to have a Guardian appointed, will be intimated to all other relatives who are considered to fall within the category of interested parties’ and also to the local authorities and other interested parties as required. On the order being granted, the next step after granting the order is to obtain a Bond of Caution (an insurance policy) when there is property/assets to be looked after and have the order registered with the Office of the Public Guardian who will then issue a Certificate granting authority for the Guardian to act for the adult. Our involvement is almost complete at this stage and the ongoing administration becomes the responsibility of the newly appointed Guardian. The Guardian will be asked to submit an inventory of the assets of the adult and a management plan for the future handling of finances. At the end of each subsequent year a full annual account has to be submitted to Office of the Public Guardian for approval.

Costs

There are a number of costs and outlays to be met in applying for Guardianship. The medical reports vary but usually cost between £50 and £150. The court application is raised as a Summary Application and there is a court fee which can be found on Scottish Courts website, as well as other information on the courts. If the court application is granted, a Bond of Caution by an insurance company will then be required and depending on the value of the assets this will normally cost a minimum of £270, and often much more. Our own fees for setting up the Guardianship plus further outlays to the Office of the Public Guardian to lodge the inventory and management plan, will be in addition. The setting up of a Guardianship Order can be quite expensive and may end up costing £1,500 – £2,500. We will provide you with a full breakdown and estimate of costs at the outset as a guideline. Where the adults estate allows the outlays and fees can be deducted from the adult’s Estate, once the Guardianship Order is in place, but we may have to request funds upfront to cover the initial costs. We will agree with you in advance how the costs are to be met.

Becoming a guardian is a serious and responsible undertaking.

In order to proceed we require applicants to confirm their instructions to proceed in person. We need to know if you will be a sole Guardian or joint Guardians. We will require identification and clear instructions from all prospective Guardians in the usual form e.g. a household bill showing your address and a passport or driving licence. Any passport or driving licence sent to us will be returned immediately by recorded delivery.

We hope to advise and guide you through the application process with as little drama as possible.

Further information can be obtained from Office of Public Guardian: www.publicguardian-scotland.gov.uk