Forward planning is vital when you are applying for a Guardianship

The law in Scotland says that everyone over the age of 16 is an adult and should be able to make decisions for himself or herself. However, if that person is unable to do so because of illness, disability or injury, someone else has to make a decision on their behalf. Most of us are familiar with one of the two options available – Power of Attorney.

Guardianship, the alternative, differs from Power of Attorney because it involves applying to the court for a Guardianship Order; it cannot be granted by the individual concerned.

Two main groups are covered by Guardianships – young adults incapable of making their own decisions or elderly people showing severe cognitive decline. The Order can be welfare, which relates to health and well-being, and/or financial, which involves dealing with banks, bills etc. The process takes, on average, around a year from first instruction to the appointment of the Guardian depending on where you live in Scotland.

I’m approached often by parents of children with additional support needs who don’t have a Guardianship Order. On their child’s 16th birthday they suddenly realise that they can no longer advocate for them legally which can have huge repercussions.

A young person’s doctor, or dentist, is not able to speak to a parent on their child’s behalf, or carry out medical treatment, if the individual in question has no capacity to consent. Indeed, there have been instances where medical professionals have gone ahead with necessary procedures without a Guardianship being in place and have faced legal action.

If family members do not apply for Guardianship for their loved one, Social Work can apply to become their Welfare Guardians, and the court can appoint a professional Financial Guardian to deal with the adult’s finances, taking these matters out of the family’s hands.

It’s crucial to recognise that getting a Guardianship in place takes time. This is because a Mental Health Officer’s report must accompany the application to court and the length of the waiting lists for an Officer vary from one local authority to another. If you’re based in the east coast of Scotland you could be waiting two years to be allocated such an expert. Once the Mental Health Officer has completed their report, the application can be lodged with court, together with the required medical reports.

One also has to be aware that initial appointments are now made for a three- or five-year period, so another application has to be made at least six months before an Order expires.

Guardianships are on the rise in Scotland with over 19,000 Orders in existence in Scotland today. While the last decade has seen figures double, the number of solicitors dealing with Guardianships is reducing.

This undoubtedly reflects the fact that where there is a welfare element to the Order, Legal Aid is available to pay for the court portion of the application. It is, therefore, not an area of the law considered particularly lucrative in spite of the huge demand.

Given that the course of someone’s life can be altered by a Guardianship for the better, it’s worth thinking ahead. It’s clear from the circumstances outlined above that forward planning makes all the difference.

Jacqueline Tainsh is a Senior Associate Director, MCM Solicitors