Contrary to expectation, family members (including a spouse, civil partner or children) do not have legal authority to act on another adult’s behalf unless they have been granted the authority to do so. This can be taken care of by granting a power of attorney. But a power of attorney can only be granted if someone has full mental capacity to do so.
What if a power of attorney can’t be granted?
If someone needs help with their affairs, but cannot grant a power of attorney, an application can be made to appoint a guardian. A guardian is someone who can look after the adult’s affairs. A guardian can look after both financial and business affairs, and also more personal affairs, such as medical matters.
Guardianship is a very complex area of the law. Our personal legal experts are always happy to discuss your particular circumstances.
How is a guardian appointed?
An application must be made to court to appoint a Guardian.
The application process can be time intensive and complex. Various reports must be obtained from both medical practitioners and the Social Work department. Further reports may be required where there are financial assets involved.
Once the application is granted, it must be registered with the Office of the Public Guardian, which is part of the Scottish Courts and Tribunal Service. There are various outlays which must be paid by the adult’s estate including a fee to the Public Guardian, an insurance policy (referred to as “caution”) and an annual management fee.
Our personal legal experts can advise and help at all stages of the process.
How long does a guardianship last?
A will last for a period determined by the court. This can vary, but is usually somewhere between 3-5 years.
What duties does a guardian have?
A guardian must act in accordance with certain statutory principles, both in managing the adult’s financial and business affairs, and in taking more personal decisions on their behalf.
The Public Guardian (an official of the Scottish Court and Tribunal Service) is responsible for supervising a guardian’s financial actions. There is a very high degree of supervision placed on guardians by the Public Guardian and it is necessary to submit detailed annual reports.
The Local Authority supervises more personal decisions taken on behalf of the adult. Again, there is a high degree of supervision placed on guardians.
We have built up practical and legal expertise and can advise on how these duties might best be discharged.
How much does it cost to appoint a guardian?
Each case is different, and we will be happy to discuss the possible costs as they might apply in your particular circumstances. The costs of appointing a guardian are generally paid for by the affected adult.
In certain circumstances Civil Legal Aid may be available. We are registered with the Scottish Legal Aid Board for this purpose. The Legal Aid Board has issued guidelines on eligibility: http://www.slab.org.uk/public/civil/eligibility/