In this section you will find information about:
Guardianship - for continuing help
Guardianship under the Adults with Incapacity Act is intended for 'continuous management', to help an adult who needs long-term involvement from someone else to make decisions involving his or her financial or welfare matters, or both.
You can apply to the local sheriff for a guardianship order. Guardianship can cover property and financial matters or personal welfare, or a combination of these. It is likely to be suitable where the adult has long-term needs in relation to these matters and has lost, or has never had, capacity to take decisions or action on these matters for him or herself. The sheriff would have to be satisfied that the adult is incapable with regard to the matters in question, and that there is no other suitable means of safeguarding or promoting the adult's interests in these matters. For example, it might be appropriate to apply for guardianship where a person with serious learning disabilities reaches adulthood. It might also be suitable where someone has moderately or severely advanced dementia.
How do you decide if an intervention or guardianship order is needed?
You can consult your local authority social work department, a solicitor, the Public Guardian or the Mental Welfare Commission, where the lack of capacity is as a result of mental disorder.
What a guardian can do
A guardian can be given any combination of powers over the person's finances, property and welfare. These powers might include:
- managing the property or financial affairs of the adult, or specified aspects
- dealing with all aspects of the personal welfare of the adult, or specified aspects
- pursuing or defending nullity of marriage, divorce or separation
- authorising the adult to carry out transactions the guardian may specify.
A guardian can delegate duties, for example, by giving the carer money to manage day-to-day expenses. However, he or she is still responsible for the care of the adult and/or the adult's funds.
What a guardian cannot do
A guardian cannot have power to:
- place the adult in a hospital for the treatment of mental disorder against his or her will
- consent on behalf of the adult to certain medical treatments covered under the Mental Health Act or which Scottish Ministers may list
- make gifts from the person's estate without permission from the Public Guardian
- consent to the adult marrying
- make a will on behalf of the adult
- sell property without the Public Guardian's permission in principle and with regard to cost.
What if no-one is willing to be appointed?
The local authority must apply for guardianship where it is necessary and no-one else is doing so. As indicated above, the chief social work officer can be appointed guardian in respect of personal welfare, but the chief social work officer cannot be appointed to deal with property or financial affairs. If no-one is willing to be appointed guardian to deal with property and financial affairs, you can get advice from the Office of the Public Guardian or a voluntary organisation which offers a trustee service for adults with incapacity. However, if after seeking this advice no-one is willing to apply, the local authority has a duty to make the application and to identify someone prepared to take on the role of financial guardian. It is also possible that the adult's affairs could be satisfactorily dealt with by intervention orders or measures outwith the Act.
Can a guardian be paid?
Payment will not normally be permitted for guardians exercising welfare powers. Professional people exercising guardianship powers over property or financial affairs can claim a fee.
How are the adult's interests protected?
The report which the court receives will examine the appropriateness of the order sought and the suitability of the person nominated. The court can ask for evidence and further reports on these matters.
All guardianship orders are registered with the Public Guardian. The Public Guardian supervises the exercise of powers over financial affairs and property and will normally require financial guardians to submit regular accounts. The local authority social work department supervises welfare guardians. The appropriate authority will investigate complaints against persons exercising powers under guardianship orders and powers can be modified or revoked.
What does the code of practice cover?
The code of practice sets out the legal requirements for intervention orders and guardianship orders to be made. It gives guidance on how to decide whether an order is needed, and which order is needed. It makes suggestions on the types of powers that could be included in an order. It tells you how to go about applying and getting the necessary reports. It gives guidance on how to exercise your powers once you have them, and on keeping records. It explains how supervision works and what will happen if things go wrong. It explains what you need to do if there is a change of circumstances, and how to go about renewing your powers when the order is nearing the end of its term. Lastly, it explains what happens if the adult no longer requires a guardian and your powers need to be recalled.
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