Adults with incapacity: guardianship

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Many people often take it for granted that they will always be able to manage their own financial affairs or continue to be able to make simple decisions about where they will live. Some people have the foresight to make sure that they have a Power of Attorney in place to regulate what is to happen and who is to take charge of their affairs in the event that they become unable, for any reason, to do so themselves. Others, however, may find themselves in a position where they are no longer able to instruct the appointment of an Attorney, and, if the adult in question is no longer capable of doing so, an application will most likely need to be made to Court for a guardian to be appointed. Applications for the appointment of guardians in circumstances where the adult can no longer manage their own financial affairs or make decisions about their welfare are governed by The Adults With Incapacity (Scotland) Act 2000.

An ‘adult’ is a person who is over the age of 16. A ‘lack of capacity’ may occur gradually as a result of a degenerative condition such as Alzheimer’s disease or dementia, or it may be as a result of an injury sustained at birth, or an accident occurring later in life. If an adult is or becomes incapable, guardianship may be needed to ensure that the adult’s property or financial affairs are managed and safeguarded and that decisions about the adult’s welfare can be made on an ongoing basis.

An application for guardianship can be made to the local Sheriff Court in the area in which the adult is ordinarily resident. The application may be made by a relative or close family friend of the adult, or it may be made by the local authority in the event of there being no immediate next-of-kin. Applications can be made for the appointment of one individual guardian, joint guardians, or for a substitute guardian to be appointed in the event of the original guardian(s) becoming unable to act.

The application is submitted to Court along with relevant accompanying reports. Two separate medical reports based on an assessment of the adult will need to be submitted. A report about the suitability of the applicant will be required too. When an application is made, the present and past wishes and feelings of the adult so far as they can be ascertained, must be taken into account and consultation with relevant other people is required. The views of the adult’s nearest relative and primary carer will be sought as well as the views of any other relevant or interested party.

A prospective guardian can ask the Court to confer upon them ‘financial or property powers’, ‘welfare powers’ or a combination of both types of powers. Financial powers may include powers allowing the guardian to manage bank accounts or authorise the sale of heritable property for the adult’s benefit. Welfare powers may include the power to decide where the adult should live or the power to make decisions about and agree a package of care for the adult. The powers sought must be relevant to the adult’s circumstances. One of the guiding principles of the Adults With Incapacity (Scotland) Act 2000 is that there should be no intervention in the adult’s affairs unless it will benefit the adult and that benefit cannot reasonably be achieved by some other means. Consideration should therefore be given to the adult’s whole circumstances and to whether there are any other ways or means for the adult’s affairs to be managed prior to making an application for guardianship. For example, if the adult is in receipt of benefits from the Department of Work and Pensions but otherwise does not own any other assets, an application for guardianship may not be the least restrictive way to manage the adult’s finances. In certain circumstances, an Intervention Order may be more appropriate. You should discuss and consider what other options are available when seeking advice.

Once the application has been determined, the order is made by the Sheriff and it provides the individual(s) appointed authority to act on behalf of the incapable adult on an ongoing basis, usually for a fixed period of time. Prior to the expiry of the guardian’s appointment, an application to renew the order will be required. It is also possible to apply to the Court to vary the powers conferred upon the guardian in the event of a change of circumstances arising throughout the duration of the order.

It is possible in certain circumstances to seek interim powers, for example where the adult has been in hospital and requires to be discharged to a care or nursing home, power to move the adult can be sought on an interim basis pending the application being considered as a whole.

One of the functions of the Office of the Public Guardian (Scotland) is to supervise those individuals who have been appointed to manage the financial and property affairs of adults who lack the capacity to do so for themselves. Financial guardians will typically need to prepare and submit an Inventory of the adult’s estate, a management plan and annual accounts to the Office of the Public Guardian (Scotland). Welfare guardians’ powers are supervised by the local authority social work department.

If you require advice about applying to be appointed as a financial or welfare guardian for a friend or family member, please get in touch. We will support and guide you throughout the process.

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