Personal Law

For many people, making an application for a guardian to be appointed on behalf of a loved one can be a difficult time. With so much to think about, questions like; Do they really need a guardianship order? Where do I start? Who should I go to for advice? Who should I appoint? What is the procedure? – are all common place.

Whilst there is a lot of useful information out there, there are also many myths and misconceptions surrounding guardianships, often provided by that well-meaning friend or not so accurate internet forum.

Understandably, it can all become a bit overwhelming. With that in mind, I have put together ‘Five things you need to know about guardianships’ to try to help those who are considering a guardianship application navigate their way through the process. Hopefully I can also bust a few of those myths and misconceptions along the way.

1. When does a guardian need to be appointed?   

Generally speaking, guardianships are necessary when an adult becomes incapable, often through mental or physical illness and a power of attorney has not been put in place. An adult is ‘incapable’ when they are unable to look after their own affairs. Every individual is different and whilst some people may be capable of making smaller day to day decisions, they may be incapable of making big or complex decisions. This is why every guardianship application must be tailored to the individual needs of the adult.

Guardianships are for adults of all ages. You may be familiar with people requiring a guardianship due to age related conditions such as dementia. However, you should also know that guardianships may also be necessary when a child turns 16 years old and lacks capacity to make decisions for themselves – perhaps as a result of a disability.

2. But I am next of kin…

The ‘but I am next of kin’ phrase arises from one of the most common misconceptions relating to adults with incapacity. If an adult becomes incapable, it does not matter in law whether you are their parent, spouse, or lifelong friend – you do not have automatic authority to make decisions on that person’s behalf.

If you do find that you need authority to do something on behalf of an incapable adult, you should seek legal advice. It may be that a guardianship is required.

3. Welfare, financial or both?

When applying for a guardian on behalf of an adult you may apply for a financial guardian, a welfare guardian, or both to be appointed. Most of the applications I have made are for both, but this is not always necessary.

Welfare guardians make decisions about the adult’s personal wellbeing, including their care, where they live and any medical treatment they receive. Financial guardians deal with the adult’s financial affairs, including what they own and any payments they may have to make. Often younger adults – who never needed a financial guardian before – need one appointed when they move out of the family home for the first time and need help in managing a lease for their new accommodation.

4. Who should be appointed?

Generally speaking, guardians tend to be family members or close friends who know the incapable adult well. That being said, sometimes a solicitor is appointed to deal with the adult’s financial affairs. There are various administrative requirements which go along with being a financial guardian and it may be that family members prefer for a solicitor to deal with those requirements.

It is always a good idea to appoint more than one guardian or, alternatively, appoint a substitute guardian. If you can imagine the situation where only one guardian is appointed and for some reason they become unable to act, you are back to square one with no guardian appointed.

5. The Process

You have to apply to court to be appointed as a guardian. The application sets out who is to be appointed, the powers that person is seeking and why that person is suitable for the position. Along with the application, a number of  reports must be submitted to the court. This includes two medical reports, a report by a mental health officer and sometimes further reports, depending on the circumstances. The guardianship process is not simple and it can take some time to go from the beginning to the end. However, taking the right advice can make the process a lot easier.

If you are considering making a guardianship application for a loved one, or would like to know more, then please do get in touch with myself at gillian.wilson@brodies.com or a member of the personal law tax team and we would be delighted to assist you. We have a wealth of experience, we understand that this is a difficult situation for our clients to be in and we are there to guide them every step of the way.

Gillian Wilson

Gillian Wilson

Gillian advises on all aspects of personal law, including; estate planning, preparation of wills, trust and executry administration and incapacity related issues.
Gillian Wilson

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