‘Capacity’ is a medical and legal term which refers to a person’s ability (or lack of ability) to deal with their own affairs. The Adults with Incapacity (Scotland) Act 2000 provides various legal instruments for dealing with affairs on behalf of another person who lacks capacity. The two primary instruments under the Act are Power of Attorney and Guardianship Orders.
Guardianship Orders are sought for individuals who lack capacity, but who had not created a valid Power of Attorney beforehand.
If you are beginning to think that Guardianship applies to you or a loved one, here is what you need to know:
- Power of Attorney and Guardianship Orders, though similar legal instruments, are granted in different circumstances (for further details, see our blog).
- There are 2 types of Guardianship Orders. Welfare Guardianship Orders grant the Guardian various day to day powers set out in the order. For example, deciding where the incapacitated Adult (‘the Adult’) should live and how the Adult should dress and consenting to medical treatment on behalf of the Adult. Financial Guardianship Orders grant the Guardian various financial powers set out in the order. For example, managing the Adult’s bank accounts and buying or selling property for the Adult.
- An individual can seek Guardianship orders alone, or jointly with one or more individuals. Where competing applications are made, only one can succeed.
- The Adult’s local authority can be appointed Welfare Guardian, but not Financial Guardian.
- Legal Aid is available and Guardianship applications are generally free.
- The entire process, from start to finish, takes approximately 3-6 months.
- Guardianship orders are typically granted for a duration of 3-5 years. In exceptional cases the order/s may be granted indefinitely.
- Guardians are supervised by the local authority’s social work department, the Office of the Public Guardian Scotland and the Mental Welfare Commission. Annual accounting of expenditure is required for Financial Guardians.
If you would like to discuss applying for Guardianship please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk
If you would like to learn more about Guardianship Orders, please visit the website of the Office of the Public Guardian Scotland: www.publicguardian-scotland.gov.uk/guardianship-orders