Guardianship

A Guardianship order is used when someone lacks the capacity to sign a Power of Attorney. A Guardianship is appointment 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.

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 such as a solicitor can make the application to the court.

No, you have no legal obligation to accept the appointment of a guardian.

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 you will need to organise social work reports and medical reports for the person who has lost capacity. McEwan Fraser Legal can organise these reports on your behalf and ensure the correct paperwork is completed for the court process.

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 may need to seek opinions from a GP or specialist Consultants.

Scottish Law sets out the role and responsibilities of Guardians and Adults with Incapability (Scotland) Act 2000. The Law is different for England, Wales and Northern Ireland.

The role of a guardian is similar to a parent. You will be given the same parental rights and responsibilities in relation to the child as a parent has.

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.

If a parent refuses assistance or care it can be both worrying and dangerous, particularly if the parent is acting strange, out of character and is unaware or oblivious to the world around them.