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.
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 guardianship appointment is 3 years.
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.
What is involved?
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. The Sheriff has 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.
The medical reports must be accompanied by another report. The 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
If the order relates to personal welfare, a report will also be required from a Mental Health Officer for the adult’s local authority. This report should not be older than 30 days when lodging the application with the Sheriff Court.
Application for powers over Financial and Property affairs
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. The report must not be older than 30 days when lodging the application at the Sheriff Court.
Application for powers over Welfare matters & Financial and Property affairs
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. This report should not be older than 30 days when lodging the application at the Sheriff Court.
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 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.
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