If a relative or friend has lost the capacity to deal with their own affairs due to a recent accident or illness then a Guardianship or Intervention order will be required where there is no Power of Attorney in place. The order can be granted in regards to matters such as medical care, finances, living arrangements and care.
There is a lot involved in creating a Guardianship or Intervention order therefore, it’s one of the main reasons we encourage that all our clients to have a power of attorney in place.
To be appointed Guardian to a relative or friend there are a series of medical and other reports which require to be carried out on the adult that has lost capacity. These reports require to be dated within 30 days of each other. Once the reports are in place an application can be submitted to the local Sheriff Court for you to be appointed as Guardian, this can be a lengthy process.
We understand this can be a daunting process for you however, our solicitors are here to guide you through the application process and we will provide ongoing support to the person appointed as Guardian.
If an adult does have capacity, but wishes to appoint someone to make these decisions in the event that they no longer have capacity, a Power of Attorney may be more appropriate. For further information on creating a Power of Attorney click here.
What is a Guardianship Order?
This is a Court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity.
A Guardianship Order is likely to be more suitable when decisions need to be made on an ongoing basis. If a “one off” decision is required, an Intervention Order may be more appropriate.
Who can apply to be a Guardian?
Anyone with an interest in the adult can apply to the Sheriff Court for an order, including a family member, carer of the adult or a professional such as a solicitor.
How do you apply for a Guardianship Order?
When applying for a Guardianship Order, you require to include a list of powers you will need to allow you to look after the adult’s affairs. Powers can be requested to deal with the adult’s property and/ or financial affairs and/ or to make decisions about their personal welfare. You require to lodge your application in Court, along with 2 medical reports and other supporting documentation. A hearing shall then take place to consider the Guardianship application.
Due to the complexity of the process, we would recommend that you obtain legal advice if you are considering making an application.
How long does it last?
The Sheriff will decide how long the order should last based on the adult’s condition and circumstances. It is usual for orders to be granted for a period of 3 years, however it might be granted for a longer period, or could even be granted for the lifetime of the adult.
What is an Intervention Order?
This is a Court order which authorises a person to make a particular decision or take certain action on behalf of an adult with incapacity, for example, the signing of a tenancy agreement. If decisions are required on an ongoing basis, a Guardianship Order may be more appropriate.
Who can apply for an Intervention Order?
Anyone with an interest in the adult can apply to the Sheriff Court for an order, including a family member, carer of the adult or a professional such as a solicitor.
How do you apply for an Intervention Order?
When applying for an Intervention Order, you require to state the precise decision or action for which you are seeking authorisation. You require to lodge your application in Court, along with 2 medical reports and other supporting documentation. A hearing shall then take place to consider the Intervention application.
Due to the complexity of the process, we would recommend that you obtain legal advice if you are considering making an application.
