When someone is unable to make decisions for themselves due to illness, disability or other incapacity it’s possible for a family member or friend to be appointed as their guardian. A guardian can manage the person’s day-to-day life and make on-going decisions about things like paying bills, dealing with bank accounts or making decisions about care and personal welfare matters.
Nowadays most people do plan ahead and make arrangements for a Power of Attorney to be put in place, which will take effect should they lose capacity, thus avoiding the need to ask the Court to appoint a guardian. However sometimes it is simply not possible to do this and there are instances where a guardianship application will have to be made.
Children with learning difficulties, who aren’t able to make their own decisions about things like education, accommodation, finances and so on, will generally have parents making those decisions. But only until they are 16-years old. At the age of 16 the child is classed as an adult by the law and it’s necessary for one or both of the parents to be formally appointed as the child’s guardian.
Now, for the first time, there are more new welfare guardians for people with learning disabilities than for those with dementia, according to the Mental Welfare Commission.
Anyone who wants to be appointed as a guardian can apply to the Court for Welfare Powers, Property and Financial Powers or both.
Welfare powers
Welfare powers can include deciding where the person in respect of whom the guardian is appointed (called “the Adult”) should live, making decisions in relation to care, medical treatment, social and cultural activities, or even deciding what clothes the Adult should wear.
Property and financial powers
Property and financial powers can include dealing with an Adult’s income, pensions, paying nursing home costs and selling any property which the Adult owns.
Whilst the guardian’s powers can be wide-ranging they aren’t unlimited, and what the guardian does is overseen by the state, in the form of the Office of the Public Guardian. The relevant legislation (the Adults with Incapacity (Scotland) Act 2000) says that any decision taken by the guardian in their capacity must:
- be for the benefit of the Adult;
- restrict the Adult’s freedom as little as possible;
- take account of the wishes of the Adult where possible;
- take account of the views of others with an interest in the Adult; and
- encourage the Adult to use existing skills and if possible, develop new skills.
Guardianship should be a last resort and it’s also worth considering whether there might be other, less restrictive, options available. These may include Intervention Orders, Department for Work and Pensions Appointeeship (for benefits) or Access to Funds applications.
We have helped many people with guardianship applications, ranging from disabled children turning 16 to elderly people suffering from dementia, and those who have lost capacity due to illness or catastrophic accidents.
Whether it’s anticipated and planned for, or something which comes out of the blue following a crisis, the legal processes involved in guardianship can be difficult to negotiate. A family law expert will guide you through the system from start to finish.
Legal Aid maybe available to pay the costs of a guardianship application and we do offer a Legal Aid service for this sort of work. We can advise you about your eligibility if you want to consider that.
If you’d like more information or advice about guardianship matters, please contact one of our Family law team.
