Are you worried that someone close to you, whether a family member or perhaps a friend, is unable to make decisions or look after their own welfare? If so, and you would like to be more directly involved in their care, you may want to consider becoming their Guardian.
Guardianship is important when it comes to caring for someone who lacks mental capacity. It is a court appointment that allows a person to act and make decisions on an on-going basis for someone who is unable to do so themselves.
It is important to understand that in order to become a Guardian, you have to apply to the courts for permission. This will come in their granting a Guardianship Order. You should keep in mind also that in seeking to become someone's guardian you are asking the court to grant you legal powers over someone. It is a significant responsibility and one that should not be undertaken without a full understanding of what this will involve.
At andersonbain, our team of specilaist guardanship lawyers offer practical guidance and support to those looking to be appointed someone's Guardian. We will help you assess whether Guardianship would be appropriate and identify the powers you will need to apply for so that you can effectively carry out your role as a Guardian.
Types of Guardianship in Scotland
Guardianship is governed by the Adults with Incapacity (Scotland) Act 2000, which sets out the conditions that must be met if the court is to grant a Guardianship Order. Generally, Guardianship will only be granted when there is clear evidence that someone 'lacks capacity' to make decisions. This has a particular meaning in law, in that they will not:
- understand the information relevant to a decision
- make a decision based on the information given
- act on the decision
- communicate the decision
- retain any memory of the decision
If you know of someone in your family or have a close friend who meets these criteria and you would like to become legally responsible for them, then you may be able to become their Guardian.
It is important to understand that someone's ability to care for themselves not only relates to their welfare, but also to their ability (or lack of it) to competently manage their property and finances. Depending on what aspect of someone's care you are worried about, you will be more interested in one or another types of Guardianship. In Scotland, there are three kinds of Guardianship Order:
- Welfare Guardianship: these relate to the wellbeing of someone, and decisions related to their long-term health, any legal obligations that they have, and other matters including their ability to go on holiday;
- Financial Guardianship: as the name suggests, this will involve having responsibility for someone's financial affairs. This includes taking control and managing their investments, ensuring their payment of any taxes due as well as making purchases of everyday items on their behalf;
- Combined Guardianship: this is a fusing of the two different kinds of Guardianship, and will grant a Guardian a significant amount of power and responsibility for someone's personal and financial wellbeing.
Applying to become a Guardian
Any application to become a Guardian will need to include a series of reports. These will give the court a full understanding of the situation and help them to understand why Guardianship is being sort. It is on the basis of this information that they will decide whether or not it is appropriate to grant the application for a Guardianship Order.
You should understand that an application to become a Guardian is not granted lightly. Given the consequences of granting an application - transferring legal authority for someone else – the court will need to be convinced that, amongst other things: Guardianship is in the best interests of the individual who will be the subject of the Guardianship Order; that individual will actually benefit from the Order being made; and, there is no other, less restrictive way to protect their interests that would be better suited to the task.
If a court decides to grant a Guardianship Order, depending on the powers contained within it, then you will be able to take action to better care for the family member or friend who is subject to the Order. Moreover, you will not need to carry out your role as a Guardian alone. Depending on the kind of Order which is granted, you will work with a range of bodies to ensure that the terms of the Guardianship Order are observed:
Financial Guardians will work in partnership with the Office of the Public Guardian. This will normally involve regularly reporting to the Public Guardian on their activities and providing a yearly account of how money has been used. This ensures that there is no discrepancy on how monies are spent and allows all parties to have a reliable record of where finances have been placed;
Welfare Guardians will work closely with the local council, normally the Social Work department. You will be asked to provide updates on how well the person you are caring for is doing, how they are adjusting to the new arrangement under the Guardianship Order and how their needs are being met. Furthermore, the Mental Welfare Commission will also take an interest, and may ask to visit to ensure that you do not need any help in discharging your duties under the Order.
Regardless as to the kind of Guardianship Order you are interested in, the decision to become someone's Guardian is a significant one. At Anderson Bain LLP, we understand the gravity of the decision to take responsibility for the care of someone else: there will be new demands on your time which you may not have fully understood, and it will be necessary to plan how to accommodate the new arrangement. Our team of solicitors can help you with the administration of applying for a Guardianship Order, and will be able to advise you on the legal requirements involved. To find out more about how Guardianship works and how we can help, please contact our friendly and professional team.