The Adults with Incapacity (Scotland) Act 2000 introduced the concept of a friend , family member or other suitable individual being able to apply to court to be appointed as a guardian to look after the financial and welfare affairs relating to an incapacitated adult, helping the adult to deal with issues ranging from payment of daily bills to making decisions regarding serious medical conditions. The order may be granted for a specified period of time or it may be granted indefinitely if the adult is older and suffers from an illness that is not going to go away. The principles underlying this Act are that the appointment of a guardian must benefit the adult and must also provide the least restrictive option for that person.
The applicant can request to be appointed as a welfare guardian or as a financial guardian or both. The welfare part of the guardianship order covers powers to deal with all aspects of the adult’s welfare for example where they live, their clothing, decisions regarding their medical care etc. The financial element covers everything to do with the adult’s finances including dealing with bank accounts, paying care home fees, selling property etc. If the adult has savings then the guardian must keep all receipts showing what the adult’s money was spent on and submit yearly accounts to the Office of the Public Guardian.
The first step of the process is to apply for civil legal aid. Legal aid is always granted where there is a welfare element to the guardianship order. Normally legal aid is granted quickly when there is no financial assessment required. If the guardianship order is purely financial, legal aid may or may not be granted depending on the amount of the incapacitated adult’s assets.
Thereafter the application can be drafted. All details of the adult’s parents, siblings and other close relatives must be noted on the form which requires to be served upon them in due course. Three reports also have to be obtained in the case of welfare applications- one from the adult’s GP, one from the adult’s allocated psychiatrist if there is one (or from a psychiatrist specially appointed to report if there is no allocated psychiatrist )and lastly a report from a mental health officer appointed by the appropriate local authority, which report assesses the suitability of the applicant to be appointed as welfare guardian or in the case of a financial application only a report from a solicitor confirming the applicant’s suitability.
Timescales are very important when applying for guardianship orders. All three reports require to be lodged at the court within 30 days of the signing of the first report. If the reports are presented late they may not be accepted by the Sheriff and the whole procedure would require to be started all over again.
Once the reports are received the application must be completed and lodged in court with the reports , in welfare cases the fee is exempt. The Sheriff will then grant a warrant to serve the application and reports on all family members noted on the form, the Office of Public Guardians and the relevant local authority. The warrant allows 21 days for objections. Thereafter a hearing will have been assigned by the court at which time the Sheriff will decide on the length of the order and whether a Bond of Caution is required
A Bond of Caution when a guardian is appointed is an insurance policy to cover any risks that the guardian fails to intromit properly with the adult’s affairs. The cost of such a policy can range from as little as £30 when the incapacitated adult has assets of no more than £5000 to £1000 when an adult has assets amounting to £450,001 up to £500,000.
Our firm has special expertise in this area of law, currently acting for individuals who are both financial and welfare guardians. If we can be of any assistance please do not hesitate to contact Neil Mackenzie firstname.lastname@example.org