A Guardianship Order can only be made by the Court. The Application for such an Order can be made by any person having an interest in an Adult who lacks the capacity to deal with their own affairs. This can cover both financial and welfare matters. As the terms suggest, a Financial Guardianship allows the Guardian to deal with all financial matters on behalf of the Adult whilst a Welfare Guardianship allows the Guardian to make decisions about the Adult’s welfare.
It is, of course, preferable that people consider granting a Power of Attorney before they lack capacity but this is not always possible and at times a Guardian has to be appointed.
It is highly recommended that everyone arrange to grant a Power of Attorney whilst they have the capacity to do so. It may be that this will never be required but it is certainly worthwhile, quicker and cheaper than having to apply for the appointment of a Guardian at a later stage.
It is also possible to apply for a Guardianship Order where the Adult has never had capacity to deal
with his or her own affairs and is never likely to gain that capacity.
Applying for a Guardianship Order involves the obtaining of a Medical Report from the Adult’s GP, a supporting Medical Report from a Doctor registered under the Scottish Mental Health legislation and a Report from a Mental Health Officer who is appointed by the Local Authority. These Reports must be lodged at the same time as the Court Application and all the paperwork must be dated and lodged with the Court within thirty days.
It is possible in certain circumstances to obtain Civil Legal Aid to cover the cost of a Guardianship Application.
Please contact Jenni Sutherland of our court department at j.sutherland@jgcollie.co.uk for more information about applying for and obtaining Guardianship Orders.