Many clients have asked us to explain how a guardianship is set up, so we thought we’d explain the procedure. It’s very important to seek legal advice before making an application for a guardianship order. If you do this, you’ll make sure the appointment is appropriate and that it will actually help the adult in question.
An application for guardianship is made to the sheriff court with jurisdiction for the area where the adult lives. Two medical reports must be presented along with the application. If the application is for welfare powers, a further report must be provided by a mental health officer from the local council.
What types of Guardianship are there?
There are two types of guardian – a welfare guardian and a financial guardian. These roles can, of course, be combined when seeking appointment as a financial and welfare guardian. The person applying for the guardianship will advise the sheriff which type of guardianship is being sought.
The person seeking the order is called a guardian. When the sheriff decides to make the appointment, he will also decide what the guardian can do.
It would be best at this stage to consider what these different types of guardianships are.
A welfare guardian is, as the name suggests, an appointment to deal with the welfare issues the adult will face because he or she is no longer able to look after his or her own welfare. In the case of a person who is unable to look after their own welfare, should nobody come forward to apply for guardianship, the Chief Social Work Officer of the local authority where the person resides can apply for a welfare guardianship.
A financial guardian is appointed to look after the financial wellbeing of an individual who is unable to manage his or her own financial affairs. Again, the local authority can become involved if there is nobody available or willing to apply for the appointment. In addition, whilst any individual can apply to be a financial guardian, an accountant or solicitor can also be appointed in this capacity.
Frequently, these types of guardianship are combined into a financial and welfare guardianship where the guardian will look after both the financial affairs of the adult at the same time as taking care of the adult’s welfare.
How long does the appointment last?
Once appointed, the guardianship will often be granted for a 3-year period (or for a longer period should the sheriff consider that appropriate). Ultimately, the sheriff, will decide on the length of the guardianship after taking into account all the information available.
The guardian will be supervised throughout the guardianship. In the case of a welfare guardianship, the local authority will conduct the supervision. Financial guardians are supervised by the Office of the Public Guardian in Scotland.
At can be very expensive in making an application for guardianship. You will need to pay legal fees, should you employ a solicitor. You’ll also need to pay fees for medical reports, fees to the court when you make the application and fees for registering the guardianship order. There may be assistance available through the Scottish Legal Aid Board, with that assistance being subject to means testing of the adult’s income and assets – not the person applying to be appointed guardian
You should also be aware that if you take on the position of a financial guardian, this can be time-consuming, especially in the first year. There are a number of administration tasks you’ll need to carry out and you also need to report to the Office of the Public Guardian ad submit annual accounts.
If you need any help or wish to discuss the appointment of a guardian, please call us on 0141 647 9851 or click here to email us.