What is a Guardianship Order?
A guardianship order is a legal order which permits someone else to make decisions on behalf of an adult who lacks capacity.
What is the legal framework for this?
The Adults with Incapacity (Scotland) Act 2000 defines an adults with incapacity as adults (people aged 16 or over) who lack capacity to make some or all decisions for themselves because of a mental disorder or an inability to communicate. For example, the adult may have a learning disability or could have acquired a brain injury. The adult could also be an older person who has recently lost capacity due to a diagnosis of dementia, for example, or have a mental illness.
When is an order required?
The discussion about this is often started when a decision needs to be made about a person’s welfare or finances. It could be the adult needs support but does not recognise this need themselves, due to their incapacity, or perhaps they need to move into a care home. Often you will not have heard of guardianship until you try to open a bank account or sign a tenancy on their behalf and are told there needs to be financial powers to do so.
Can decisions be made without an order on someone’s behalf?
Sometimes. It could be that a Power of Attorney is already in place to give authority for decisions to be made. It can also be the case that people can make some decisions themselves but not others: for example, a younger person with a learning disability might be able to decide what to eat and wear but might not understand how their medical conditions affect them, and the medication required. Some people can be supported to make certain decisions without an order, using supported decision making.
Who can apply for a Private Guardianship?
Any family member or interested person can make an application. Two people can make a joint application, or it may be prudent to consider a substitute/s to act if the guardian/s are no longer able to.
What is the process?
Firstly, you can approach a solicitor for advice and support with the application
Finding a solicitor can be tricky. Not all solicitors offer work under Legal Aid and not all solicitors undertake Adults with Incapacity work. The local authority keeps a list of solicitors who offer both so please get in touch if you would like more information.
Legal aid is available when you are applying for welfare powers of welfare and financial, but not financial only. If this is the case, the fees would usually be taken from the adult’s estate. You can find out more about this by clicking here.
You would then meet with the solicitor, please ask if you need to take forms of identification with you. Your solicitor will ask you lots of questions about the adult’s finances and life to establish if a welfare order and/or financial order are required. It is important to remember that this is specific so, if the bank ask to see your guardianship, they may not let you act if you have a welfare only order. Please ask your solicitor more about this.
It is also important that you tell the solicitor all about the adult’s life, even things you think may not be relevant; it is worth being really thorough at this stage.
Once you have told the solicitor all this, they will arrange for medical reports of incapacity to be completed. This will be two reports if this is a new application and only one for subsequent renewal applications (these are sometimes called AWI1 forms). The solicitor will also make a draft of their application and send it to the local authority who will allocate a Mental Health Officer, known as an MHO. The doctors will assess the adult’s understanding and capacity whereas MHO will meet the adult and all the applicants, in order to write a suitability report. This report is often referred to as an AWI2 or AWI3. All the reports need to be completed within 30 days of each other and sent to the sheriff court so please let your solicitor know if you have a holiday planned to make this easier to arrange.
The MHO will also contact relevant people such as other family members, a social worker or carer or maybe a keyworker if the adult attends a day service or stays in a care home.
Once all the reports are completed, the solicitor will lodge this with the application at court. Following provision from court of a warrant of intimation for a hearing date, your solicitor will then send all the application and reports to all relevant parties. You do not need to attend the court as your solicitor will attend on your behalf – however, you may always attend if you wish.
Everyone asks how long this next stage takes but this can vary.
What types of powers might you need?
It is worth considering the powers you might need before you speak to your solicitor; but do not worry, your solicitor will ask you specific questions to prompt you to think about this. The MHO will also discuss this with you when they come to visit as part of their role.
It is worth remembering the ‘powers’ requested are specific, so, a medical power would allow you to consent to a covid vaccine but it would not permit you to sign a passport application.
Please tell your solicitor as many details as you can such as - for example - does the adult have a bed guard or wheelchair lap belt or something that restricts their movement, even if it is there for safety? Does the adult have a doorbell that records them leaving the property, or telecare alarms that alert someone about their movements? This is also a safety feature but is considered quite intrusive and, if the adult cannot give informed consent, then a power would be required to give authority for this.
Other things to consider are: do you or a carer open their mail? Are snack items kept in a locked cupboard in their house? Do you make decisions about who they spend time with or the activities they attend? Please also consider if you would like to appoint other friends or family members to act as a substitute guardian should you no longer be able to act.
How are the adult’s views included?
One of the principles of the Act is ‘taking into account the adult’s views’. The MHO who completes the suitability report for a private guardianship application will speak with the adult to gather these. A referral can also be made to independent advocacy to support the adult to share their views. If this is an older person, often EARS advocacy will support them; whereas a person with a learning disability may be supported by Partners in Advocacy. You can find out more about this by clicking here.
Who can assess capacity?
A specialist doctor with psychiatric training will assess capacity. If it is the first application, two doctors will be required, often one of these will be the adult’s GP. This is different to a Power of Attorney - a solicitor cannot complete a medical assessment of capacity for a guardianship.
How long does an order last?
Your solicitor will offer advice on this, but quite often the first order will be requested for 3 years.
When might an Intervention Order be required?
An intervention order is different to a guardianship order. While a guardianship order is to make ongoing decisions, an intervention order is for one-off interventions such as, signing a tenancy.
Where can a guardian find support?
The local authority has a duty to supervise guardians. You can contact us by:
- calling 01875 824309
- emailing awiqueries@eastlothian.gov.uk
Where can I find more information?
There are several additional places where you can seek advice or look for more information:
You can read the details of the Act by clicking here.
The Office of the Public Guardian can offer advice on financial guardianships, click here for more information.
The Mental Welfare Commission have Good Practice Guides which offer helpful scenarios, click here for more information.
There is a Code of Practice for guardians, click here for more information.
What if there is no one who is able to apply?
The local authority has a duty to consider the need to apply when there is no one else who is able or suitable to apply. A Guardianship Case Discussion meeting would usually be held, where the adult, their family members and people who are important in their life, are invited to get together with professionals to establish if an application is required and who is best placed to make this.
How is a Guardianship order different to a Power of Attorney?
Read up on what it means to have Power of Attorney.