Guardianship for Adults

A Guardianship Order is a court appointment that authorises someone to make decisions and take action on behalf of an adult who has lost capacity – whether due to old age, ill health or other unforeseen circumstances. Usually one or two people will be appointed as guardians, although it can be more.

A Guardianship Order can cover a wide variety of financial and welfare powers.

Financial powers can include the ability to deal with the adult’s property and bank accounts, and also to claim any benefits on the adult’s behalf. Welfare powers can include the power to decide where the adult should live, and whether they should be taken on holiday.

Intervention orders may also be granted for one off financial decisions that are required to be made on behalf of the adult, such as the power to sell a house.

When determining what powers should be granted, the Sheriff will consider the least intervention required to benefit the adult.

Anyone who has an interest in the adult can apply to be guardian, as can the local authority. A person with an interest may be a relative, friend, or a professional person.

Joint guardians can also be appointed if more than one person wishes to be appointed.

When you apply for a Guardianship which includes welfare powers a Mental Health Officer at the local authority will be appointed to consider the suitability of the proposed guardian. Two reports from doctors confirming the adult’s incapacity are also required, one of which requires to be an approved medical practitioner in terms of the legislation. If financial powers are sought it may also be necessary to obtain a report on your suitability as a financial guardian. The reports require to be dated within 30 days of the application to the court for guardianship.

Your Solicitor will assist with the court application to have you appointed as guardian. A court hearing will then be allocated to consider the matter. You will not generally require to attend at the hearing unless you wish to do so. The court will then determine what powers should be granted.

Once a guardianship order has been granted, the court paperwork will be issued to the Office of the Public Guardian who will issue you with your certificate confirming your appointment.

There is no set timescale for a Guardianship Order being granted. It generally takes around 4-6 months to obtain a guardianship order. However, if powers are required urgently, you can apply for an interim order.

Usually, powers are granted for a three-year period. However, the Sheriff does have discretion to shorten or increase the length of the order. In some cases, the Sheriff will grant powers for the duration of the adult’s life.

A guardianship order can be recalled by application to the Sheriff by the adult or an individual with an interest in the adult’s welfare or financial affairs. A replacement guardian may be put in place by the Sheriff by such an application.