Guardianship - When is a Guardian required? How do I apply to become a Guardian?
Michelle Moran, Solicitor
Following on from Tom Macaskill’s recent blog highlighting the importance of having a Will and a Power of Attorney, you might be wondering what happens if someone does not have a Power of Attorney in place and is no longer able to make decisions for themselves? In this situation family members may take the decision or be advised to seek a guardianship order.
What is a guardianship order?
A guardianship order is an order granted by a court giving power to whoever applies to make welfare and/or financial decisions on behalf of an Adult who has been deemed to no longer have capacity to make these decisions for themselves. A guardianship order allows decisions to be made on behalf of an Adult on an ongoing basis, for example the kind of care they will receive, or it may allow them to sell a property if they need to. Guardianship orders are generally granted by the court for a period of 3 years. An Adult is deemed to be someone who is over the age of 16 years and is not able to look after their own affairs.
Who can apply to become a guardian?
An individual can be appointed as someone’s guardian so long as they are deemed to be a suitable person to be appointed by the court. Usually, family members apply to become a guardian for example on behalf of an elderly parent or a young adult with a disability. In some cases however, the social work department can apply to become an individual’s welfare guardian or an accountant or a solicitor can apply to become a financial guardian if there is no other suitable person.
How long does the process take?
The process does take time. The time it takes depends on a number of factors. In the local authority area of Fife, applications can be made to court within a time frame of around 10-12 weeks. This process can sometimes take much longer depending on the local authority area that the Adult lives.
What is involved in applying to become a guardian?
The process involves obtaining 2 medical reports to confirm that the Adult is no longer able to make decisions for themselves and is deemed to have no capacity. A third report is obtained from the local authority mental health team who assess the individual or individuals’ suitability to act as a guardian. These reports are submitted to the court along with an application setting out the powers you wish to have granted. A court hearing will be fixed and a decision will be made by a Sheriff regarding the appointment of a guardian.
How much does it cost?
Applying to become someone’s guardian can be a costly exercise. However, if applying for powers relating to welfare, legal aid is available which will significantly reduce the costs involved.
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