Guardianship Orders
The Adults with Incapacity (Scotland) Act 2000 (referred to as the AWI Act) introduced some new arrangements for making decisions about the personal welfare, property and financial affairs for adults who are incapable of doing so for themselves.
The Adults Support & Protection (Scotland) Act 2007 has brought in some changes to the AWI Act and these mostly affect the processes involved when applying for a guardianship order. The information which follows includes the changes which will be effective from 1st April 2008.
What is a guardianship order?
A guardianship order is a court appointment which authorises a person to take action or make decisions on behalf of an adult with incapacity. A guardianship order can be in relation to property and financial matters, personal welfare, or a combination of these. Guardianship is likely to be more suitable where the adult has long-term needs in relation to these matters. The standard term for a guardianship appointment is 3 years, although the Sheriff has the discretion to make the appointment for a longer or shorter period.
Guardianship can be applied for when a person is over the age of 16 years. For young adults about to reach the age of 16 years, guardianship can be applied for in the three month period leading up to their 16th birthday. This means that the guardianship will take affect on their 16th birthday.
Who can apply?
A guardian must be an individual, unless the guardianship order relates to personal welfare matters only, in which case the Chief Social Work Officer for the adult's local authority may be nominated. An individual can be a private individual, e.g. a relative or friend of the adult, or someone acting in a professional capacity, such as a solicitor or accountant. An application can be made to appoint more than one guardian and/or substitute guardians.
How do I make an application for guardianship?
Before applying for a guardianship order, the applicant should be satisfied that the intervention will benefit the adult and be the least restrictive means of managing their affairs. The adult and relevant others must also be consulted. An application for guardianship is made to the local sheriff court in the area in which the adult resides by "summary application". The application will detail the powers needed to manage the adult's affairs.
A publication is available from the Scottish Government which is useful for carers or anyone thinking about applying for a guardianship order. Click here to view the publication.
What is involved in making an application?
To make an application for a guardianship order, you will have to obtain two independent medical reports of incapacity completed by registered and licensed medical practitioners, which are based on an examination and assessment of the adult carried out, where possible not more than 30 days before the application is lodged with the sheriff court. From 1st April 2008, the Sheriff will have discretion to accept medical reports older than 30 days.
Where the adult's incapacity is the result of a mental disorder, one of the registered and licensed medical practitioners must be approved under Section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Click here to view the report AWI (1).
The medical reports must be accompanied by another report. This report will depend on the type of powers being sought, for example, welfare powers, financial powers or a combination.
- Application for powers over Welfare matters
- Application for powers over Financial and Property affairs
- Application for powers over Welfare matters & Financial and Property affairs
If the order relates to personal welfare, a report will also be required from a Mental Health Officer for the adult's local authority. Click here to view the report AWI (2).
If the order only relates to property and financial matters, a report will be required by someone who has sufficient knowledge to make such a report on the appropriateness of the order and suitability of the proposed guardian. This report must not be older than 30 days when lodging the application at the sheriff court. Click here to view the report AWI (8).
If the order relates to personal welfare and financial and property affairs, a report will be required from a Mental Health Officer for the adult's local authority. Click here to view the report AWI (2).
What is Caution?
When granting the guardianship order, the Sheriff may require a financial guardian to find caution or give some other form of security. Caution is an insurance bond to safeguard the adult's estate from loss caused by negligent actions or omissions by the guardian. For more information on Caution, please click here.
Who supervises guardians?
The AWI Act requires the Public Guardian to supervise financial guardians. This is intended to ensure that guardians are carrying out their duties properly. A financial guardian will normally be required to lodge with this office an Inventory detailing the estate of the adult over which they have been granted authority and a Management Plan showing how they are going to utilise the adult's estate. They will also be required to provide an annual accounting of their actions with the adult's funds.
Whilst under the supervision of the Public Guardian, the financial guardian, if appropriate, will be required to obtain consent to make gifts from the adult's estate and for the purchase or sale of accommodation which the adult lived in and also owned.
The AWI Act requires local authorities to supervise welfare guardians. This is intended to provide the welfare guardian with advice, guidance and support. Supervision can be used to identify whether a guardianship order requires to be renewed at the end of the period of appointment, or to confirm that the criteria on the suitability of the guardian is still met.
Renewing the authority
At the end of the period of appointment if powers are still needed to help the adult manage their affairs or to make decisions on the adult's behalf you will need to re-apply to the sheriff court to renew your appointment. Renewal may be by minute or summary application.
Click on the link below to find out what you need to do to renew a:
- pre-AWI Act guardianship appointment
- welfare appointment - expedited renewal process
- financial appointment - expedited renewal process
- combined welfare and financial appointment - expedited renewal process
It is highly recommended that the code of practice for persons authorised under intervention orders and guardians is read in conjunction with the above. Please click here to view and download the code of practice or contact Scottish Government.
