How do you go about getting an intervention or guardianship order?
An application for an intervention order or for variation of an intervention order is made by 'summary application' (unless it is the result of criminal proceedings). A summary application is a form of miscellaneous civil court procedure. Guidance for applicants is available from the local sheriff clerk. Contact details can be found on the Scottish Courts Website.
You will need two independent medical reports of incapacity, based on an examination and assessment of the adult carried out not more than 30 days before your application to the sheriff.
If the order relates to personal welfare matters, you will need a report from your local authority social work department. If it relates only to property or financial affairs, you will need a report from someone with sufficient knowledge to make such a report, such as a relative or carer or an independent professional such as an accountant or lawyer. You need to give the local authority 21 days notice of your intention to apply. You may find it helpful to discuss these timescales with the local authority.
Will it cost money to apply?
There will be a fee to the court for your application. There will be fees to the medical practitioners for providing reports of incapacity. There will be no fee to a local authority social work department, but there may be a fee to a person with sufficient knowledge to make a report on an application relating to financial affairs or property. You will be able to recoup the costs from the adult's estate, provided you ask the sheriff to order this. Legal aid may be available, based on the adult's means.
Do I need a solicitor?
You can use a solicitor to do the application or you can do it yourself. If you choose to use a solicitor to help you apply, ask about the likely cost before you go ahead.
Who can be appointed under an intervention or guardianship order?
Any person, including a professional person, can be authorised under an intervention order. You can apply for an intervention order, but nominate someone else to be authorised, such as a lawyer, or social work officer, if you do not want to nominate yourself. It is also possible for someone else, say the local authority, to apply for the order, and nominate an individual or a local authority officer.
Any individual can be appointed a guardian, but where there is no-one willing to be appointed, and guardianship is necessary to safeguard an adult's personal welfare, the chief social work officer of the local authority must be nominated. A private individual could be nominated as financial guardian, or a professional such as a solicitor, accountant or banker. A professional appointment may be preferable if the adult has a large estate and complex affairs.
It is possible for the sheriff to appoint two or more people as joint guardians, and to appoint a substitute guardian who would take over if the first guardian can no longer act.
More information