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Guardianship Orders appoint an individual to make ongoing decisions on behalf of an adult with incapacity who is unable to make decisions about their financial and/or welfare matters themselves. We understand that ensuring that you have the power to look after a loved one who is unable to look after themselves can be a stressful experience. We aim to make that experience as straightforward and stress-free as possible. If we think a Guardianship Order is the best course of action for you and your loved one, we will ensure you are fully supported in the legal process.
The law concerning Guardianship Orders is mainly contained within the Adults with Incapacity (Scotland) Act 2000 (“the Act”) and outlines that a Guardianship Order can give the power to deal with financial and welfare matters on behalf of the individual. However, it is crucial that the Guardianship Order would not restrict the individual’s freedom any more than is necessary. The Act is designed to safeguard the needs and interests of those who are unable to make decisions for themselves in their day to day lives.
Generally, a family member or a friend will apply to their local sheriff court to become a welfare and/or financial guardian. This will be the sheriff court in the domicile of the adult who has lost capacity. Occasionally someone acting in a professional capacity will apply to be appointed where there is no one else more suited, e.g. a solicitor or accountant. However, where this is not feasible, the local authority can apply to be appointed a guardian.
Before an order is granted, it must be clear that it would be in the individual’s best interests. Before you apply you must consider:
You must also consider what powers you will need under the Guardianship Order. These are categorised as welfare and financial decisions.
Applying for a Guardianship Order can be complex and so it is highly recommended that you seek legal advice before doing so. Here at Claphams, our Guardianship Order Solicitors have extensive experience in dealing with guardianship issues and would be delighted to help you through what can be a complicated process with our personal and compassionate service tailored to your needs.
If an order is granted, it will be communicated to the Office of the Public Guardian. Although the sheriff will grant a time limit, the order will always be subject to review and can be recalled at any time.
A Guardianship Order and Power of Attorney grant the same legal authority, allowing a person to make important welfare and/or financial decisions on behalf of someone else. The differences lie in when these measures are applied for and how, and how long they last.
A Guardianship Order is applied for by a relative or other trusted person on behalf of someone after they have lost capacity, whereas a Power of Attorney allows an individual with full capacity to appoint another person to make decisions for them in the future in case they lose capacity.
Guardianship Orders are applied for through the courts, while a solicitor will draw up a Power of Attorney.
Guardianship Orders usually last for a fixed period, whereas a Power of Attorney will continue unless the person granting the authority revokes it or dies.
Our approach is compassionate and personal. We’re here to listen to your needs and to help you create a plan that places your loved one’s interests at the forefront. Contact Claphams today on 0141 620 0800 or fill out our online enquiry form if you are in Clarkston, Newton Mearns, Giffnock, Netherlee or the surrounding areas.
Find out more about our expert conveyancing Solicitor, Debra Clapham, Editor of the ‘Basic Scottish Conveyancing’ manual.
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