Guardianships – when might you need one?

12/10/2019

Guardianships – when might you need one?

When most people hear about guardianships, they think about someone who’s appointed to look after the affairs of older people. However, guardianships aren’t just reserved for dealing with the affairs of the elderly. Guardianships may be required for adults of all ages.
When we talk about guardianship, the type of guardian we’re talking about is someone who’s appointed to look after the affairs of an adult – and my adult, we mean anyone over 16 years of age and where the appointment is made in terms of the Adults with Incapacity (Scotland) Act 2000.

When we think about guardianships, we don’t normally think about it applying for a young adult – but this does happen – it’s just doesn’t have the media publicity guardianships for older people usually have.

Let’s look at guardianships in a little bit more depth.

How do you apply for a guardianship?
You make an application to the sheriff court in the area the adult lives. To make the application, you need two medical reports and these must be presented with the application. If the application is to include welfare powers, a mental health officer from the local council must also provide a report.

There are two types of guardian – a welfare guardian and a financial guardian. As you would expect, these roles can be combined into a financial and welfare guardianship.
The person who applies to be appointed guardian tells the court which type of guardianship he or she is looking for.

The person applying is called the guardian and, when making the appointment the sheriff will decide the guardian’s powers.

If you instruct us to represent you, we’ll deal with all of these things for you.
Let’s look at the  different types  of guardianship.

First of all, let’s look at the welfare guardianship. As the name suggests, the guardian in this type of appointment looks after the welfare issues the adult faces because he or she is unable to look after their own welfare.

We frequently hear about people being held in hospital when there is nobody available to be appointed a welfare guardian. In these cases, when no one comes forward, the chief social work officer of the local authority where the person normally lives can apply to have a welfare guardian appointed.

The other type of guardian that can be appointed is a financial guardian. A financial guardian will look after the financial wellbeing of the adult then the adult is unable to look after his or her own financial affairs. The local authority can again become involved if nobody is prepared to come forward and be appointed. A solicitor or accountant might also be appointed in this capacity.

The roles of welfare and financial guardianship are frequently combined and, in those cases, the guardian will look after the welfare as well as the financial affairs of the adult.

How long does the appointment last?

It’s common for the guardian to be appointed for three years. However, the sheriff may decide that a longer period is needed. The sheriff is the person who will decide how long the guardianship should last, taking into account all the information available.

Will the guardian be supervised?
The Office of the Public Guardian in Scotland supervises financial guardians whilst welfare guardianships are supervised by the local authority.

What about the costs?
There may be financial assistance available through the Scottish Legal Aid Board, with that assistance being subject to means testing of the adult’s income and assets – not the income and assets of person applying to be appointed guardian.

Being a guardian can be time-consuming and there are a number of administration tasks you will need to carry out. If you’re appointed a financial guardian, you will also need to report to the Office of the Public Guardian in Scotland and submit annual accounts.

If you need any help or wish to discuss the appointment of a guardian, please get in touch.