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A Guardianship Order is used when someone lacks the capacity to sign a Power of Attorney. A Guardianship is appointed by the court and gives a Guardian the power to make decisions on behalf of another adult above the age of 16 who lack the capacity to make decisions for themselves.
A Power of Attorney (POA) is a written document which allows you to plan ahead what you want another person to do for you in the future, should you become incapable of making decisions about your own affairs. You would appoint normally appoint a family member or a close friend to be your Power of Attorney when you have the capacity to do so in other words you are thinking ahead for the future when you have the capacity to so.
Basically, a Power of Attorney is put in place when you have a capacity and a Guardianship is put in place by someone else when you don’t have the capacity to make decisions for yourself. You have no choice who will be your Guardian who has elected to look after your financial and welfare and that decision is made by the Courts. If you don’t like the idea of having any say in who will look after you in the future then make sure you put a Power of Attorney in place.
When someone lacks the capacity to take care of their own affairs and does not have the ability to make legal decisions on an on-going basis or is unable to give consent to any care needs. For example, if you are the son or daughter of a parent who does not have the mental capacity to make decisions for themselves.
A Guardian can be any person but is normally the person who has a direct interest in the person's welfare and/or financial affairs. The Guardian is normally a close family member but can be a friend or carer someone acting in a professional capacity. A Solicitor can make the application to the court and complete all the legal paperwork in order for you to obtain a Guardianship.
A Guardian can have powers to make decisions over:
a) A person's welfare such as medical treatment, education, training, where a person should live and taking the individual on holidays.
b) A person's financial affairs such as operating bank accounts, pensions, property and income tax.
The application is made to the Sheriff Court and McEwan Fraser Legal can organise all the necessary reports on your behalf to ensure the correct paperwork is completed for the court process including the Court Writ, Medical reports and the Mental Health officers report.
This is not a straightforward answer, capacity needs to be judged on a case by case basis just because a person has some disability does not mean they cannot make some decisions for themselves. As solicitors, we can make that decision however we may need to seek opinions from a GP or specialist Consultants in some cases. It is important the correct decision is reached to prevent any legal challenge by the person or third parties.
McEwan Fraser Legal is experienced in the legal process of organising and applying for a Guardianship order and it is important that expert legal advice is taken so that your application is appropriate and in the best interest of the person with the incapacity. We will draft an application to the Sheriff Court, listing the powers you are looking for and why you need these powers. We will deal with obtaining all the reports that courts will require. We will attend court on your behalf and present your case in the best possible way to achieve the outcome you are looking for. We will ensure any order is registered with the public guardian.
Yes, if certain criteria are met we can organise legal aid for you and not all solicitors who do Guardianship work offer legal aid. In Scotland, provided the application is for a Welfare, or Financial and Welfare, Guardianship, from a financial assessment point of view, Legal Aid is normally automatically available from the Scottish Legal Aid Board. The financial circumstances of the adult, or the proposed Guardian or Guardians, does not matter.
If a parent or loved one refuses assistance or care it can be both worrying and dangerous, particularly if they are acting strange, out of character and is unaware or oblivious to the world around them. The sooner you contact us the quicker we can provide expert advice to help you through this very difficult and upsetting period of your life. We understand the dilemma that you are experiencing particularly if your parent or loved one starts losing their capacity rapidly. It can sometimes be easier for you if the change is gradual because you have time to come to terms with matters and plan ahead.
