Understanding Guardianship Orders
A Guide for Families
If an adult has granted a Power of Attorney and later loses capacity to make decisions for themselves, the attorney they appointed will be able to make decisions on their behalf. However, if no power of attorney is in place, or if the person has never had the capacity to appoint one, the court may grant a Guardianship Order.
Situations where this may arise could be when a child who has never had capacity turns 16 or when an adult loses capacity and has no power of attorney.
What is a Guardianship Order?
A Guardianship Order is an order granted by the court which authorises the guardian to make decisions on behalf of the adult who lacks capacity. The prospective guardian is often a family member such as a parent, spouse or sibling.
There are two types of powers that can be sought in the guardianship application:
- Welfare Powers – These relate to the adult’s personal and care decisions including where the adult will live, the level of care they require and consent to medical treatment.
- Financial Powers – These relate to the adult’s financial and property affairs such as operating bank accounts, paying bills, and selling property.
Guardians can be appointed as welfare, financial or welfare and financial guardians.
Unlike powers of attorney, guardianship orders are granted for a fixed period of time which usually ranges from three to five years, but this depends on the adult’s circumstances. Before the expiry of the order, a renewal application must be made to the court. This allows the court to assess the adult’s circumstances and ensure that the powers granted are necessary for their benefit.
How is the Guardianship Order made?
An application is made to the court with two supporting reports from medical professionals and a report from a Mental Health Officer who is appointed by the local authority. The application will set out the powers that are sought, why they are necessary and how long the order should be granted for. There is a hearing where a sheriff will decide whether granting the order is appropriate in the circumstances.
Once the order is granted, the guardianship is registered with the Office of the Public Guardian.
Roles and responsibilities of a guardian
Welfare guardians are under the supervision of the Chief Social Worker in their local authority and financial guardians are under the supervision of the Office of the Public Guardian. It is important that guardians always act in the adult’s best interests. Financial guardians are required to keep detailed accounts of the adult’s estate, and there is guidance explaining a Guardian’s Duties and a Code of Practice for further information.
Is Guardianship the best solution?
Guardianships are not always the right course of action, and the court will only grant a guardianship order if they are absolutely necessary. Other options include:
- Power of Attorney – if the person still has capacity to grant it.
- Intervention Order – where the power for a one-off decision is required.
- Access to Funds Scheme – this provides access to the adult’s funds where their financial affairs are simple.
Getting advice
If you are considering whether a guardianship order may be necessary, please do not hesitate to get in touch with our family law team who can guide you through the process.
Email Hannah Ironside
Call our family law team free on 0808 560 0872
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