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What is a Guardianship Order

  • The Law Society of Scotland

A Guardianship Order authorises a person, or several persons, to act on behalf of and make ongoing decisions for an adult with incapacity, in order to safeguard their wellbeing and promote their interests. This may be where an adult has lost the capacity to make their own decisions, usually as a result of a physical or mental illness. In this context, an adult is someone who is 16 or over but is unable to look after their own affairs.

The law concerning Guardianship Orders is mainly contained within the Adults with Incapacity (Scotland) Act 2000 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 does not restrict the individual’s freedom any more than is necessary. The 2000 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.

The main people to benefit from the 2000 Act include individuals with learning difficulties, people who suffer from a severe mental illness and individuals with dementia. Each application for a Guardianship Order is assessed on a case-by-case basis and will be tailored to suit each individual. For example, a person with dementia may need assistance managing their finances, whereas a person suffering from a severe brain injury may potentially need assistance with day-to-day care, as well as assistance with managing their finances.

Who can apply for a Guardianship Order?

This will vary depending on the circumstances. However, this will usually be a family member or close friend. An individual acting in a professional capacity may also apply, e.g. a solicitor. It is also possible for a local authority to apply for a Guardianship Order for an individual if it considers it necessary and in the best interests of the adult to do so, and if no one else is available/suitable to act as guardian.

For children who are about to turn 16, you can apply three months before their birthday and the order (if granted) would come into force on their 16th birthday.

What is the Guardianship Order application process?

Applying for a Guardianship Order can be complex and so it is appropriate to seek legal advice before doing so. Claphams Solicitors has extensive experience dealing with guardianship issues. Our dedicated Guardianship Lawyers would be delighted to help you through what can be a complicated process with our personal and compassionate service tailored to your needs.

The Guardianship Order process will involve the local authority carrying out an assessment of the individual’s capacity and also your capability to act in their best interests as their guardian. The local authority will draft reports based on its findings, which will be sent to your local sheriff court along with your guardianship application. The sheriff will then make a decision on the application at a hearing.

Contact our Private Client Solicitors in East Kilbride, Clarkston, Newton Mearns, Giffnock, Netherlee,Eaglesham, Carmunnock, Stewarton Southside Glasgow 

Our Guardianship Order specialists are here to listen carefully to your needs and take you through each step of the application process. We understand this can be a difficult and confusing time. Our responsive team is here to answer all your queries and provide reassurance. 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.

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