Guardians of ill people’s interests

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A PREVIOUS article highlighted the benefits of powers of attorney, but there are occasions where a person does not have the capacity to grant a power of attorney. The question is what happens then.

The Adults with Incapacity (Scotland) Act 2000 was one of the first Acts passed by the new Scottish Parliament. It introduced guardianship orders and intervention orders, which can be used to meet the needs of the adult.

More than 1,500 guardians were appointed by the courts in Scotland last year. That represents a 23 per cent increase in the last three years and the number of appointments is expected to continue to increase.

What is a guardianship order?

The term “guardian” is commonly used for someone who looks after a child who is not their own. However, a guardianship order is a court appointment which authorises a person to take action or make decisions on behalf of another adult (in Scotland that is a person over the age of 16 years). It is the modern equivalent of a curator.

Guardianship is appropriate where an adult is suffering from dementia or another mental disorder or is unable to communicate, perhaps as a result of an accident or stroke. It allows another person to, for example, sell a house if an elderly relative has gone into care or decide what medical treatment they should receive. A guardianship order can be made in relation to property and financial matters, personal welfare, or both.

The standard term for a guardianship appointment is three years and so it is likely to be appropriate when the adult has long-term needs. If they have only a few assets then it may be that a more simple procedure would be appropriate and a full guardianship would not be necessary.

Who is appointed?

Once appointed, a guardian will be legally responsible for the adult. It is usually a family member, an accountant or a solicitor. In some cases it can be appropriate for more than one guardian to be appointed, perhaps two siblings.

What is involved?

The only way to become a guardian is to apply to the court. It is therefore necessary to see a solicitor. Lindsays’ Edinburgh office offers specialised expertise in applying for guardianship.

In order to ensure that the adult is properly protected, the court will require various independent reports, including two from doctors. This is to ensure that a guardian is not appointed to someone who is still capable of managing their own affairs. It also checks that the proposed guardian is a suitable person.

The process generally takes about three to four months. If there are pressing issues then it may be possible to obtain a temporary appointment.

If you would like to discuss any of the topics raised in this article please contact Jennifer or Sheena or visit www.lindsays.co.uk for more information.