Guardianships

Protecting your loved ones

If a family member or friend loses the ability to take care of their own welfare and finances, the law can help by allowing a Guardian to be appointed. None of us knows what life holds and that is why we recommend that all adults who have the capacity to do so should grant a Power of Attorney which will usually mean that Guardianship is unnecessary.

Guardianship may however be appropriate for:

• A child who has reached 16 and suffers from a disability which means they cannot manage their own affairs,
• An adult who has lost capacity because of serious injury or illness,
• An adult who has lost capacity due to gradually declining health.

There is a range of options available and we will guide you through them and help you achieve the best available outcome for your loved one. Every case is different. If your relative or friend simply needs someone to manage their benefits and savings, that can be done by a simpler procedure known as Benefits Appointee/Access to Funds. An Intervention Order can deal with a one off issue such as the sale of a property. Welfare Guardianship is needed to make decisions about where the person live or what medical treatment they have. Financial Guardianship is required where ongoing management of income and property is necessary.

We regularly provide advice on all aspects of Guardianship including

  • Benefits Appointee/Access to Funds Applications
  • Intervention Orders
  • Guardianship Orders
  • Availability of Legal Aid for Welfare Guardianship Applications
Should you wish to discuss this further please do not hesitate to contact Rosalyn Thomson by completing the form below or telephoning 0131 554 6321.
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Guide to Guardianship

 

Benefits Appointee
Where your relative or friend (the Adult) has no savings and their only income is benefits, you can apply to the Benefits Agency to have the benefits paid to a family member or other trusted third party to use the money for the benefit of the Adult. Further information can be found at
http://www.gov.uk/become-appointee-for-someone-claiming-benefits
Access to Funds
Where the Adult has savings that could be used to help meet their living expenses or to buy one off items they need, you can apply to the Office of the Public Guardian to withdraw sums from the person’s account. This is only suitable where the Adult’s financial affairs are straightforward. If the application is granted then you must keep records of all money in and out of the account as the Office of the Public Guardian may ask you to produce these.

Further information regarding Access to Funds can be found on the website http://www.publicguardian-scotland.gov.uk/access-to-funds At that link you can find the application forms and guidance together with the code of practice.
We are happy to assist you in making the application and you may be able to be reimbursed for some of your legal costs for making the application.

Intervention Order
Where there is a one off matter that needs attending to such as selling a house or cashing in an endowment policy you can apply to the court on behalf of your relative or friend (the Adult) for an Intervention Order to deal with that specific matter. The order comes to an end once the matter is dealt with.

A combination of the options above might be the best way to manage the Adult’s affairs. For example you could ask the court for an intervention order to sell a property and place the proceeds in the Adult’s account and then apply for Access to Funds to use the money to meet their care costs. We can advise you so that you can decide on what is best for the Adult.

Guardianship Orders
This will be necessary where decisions must be made on an ongoing basis to protect and promote the Adult’s welfare and/or finances. The law is that the Guardianship must be shown to benefit the Adult before the court will grant it.

Welfare Guardianship
This gives the power to make a whole range of decisions about what is best for the Adult in personal matters such as where they should live and what medical treatment they should have.

Financial Guardianship
This gives the power to deal with the Adult’s property and finances such as selling a house, managing investments, dealing with income, paying bills etc.

Combined Welfare/Financial Guardianship
This is appropriate where the Adult needs help to manage both personal and financial matters and can be made in the one application to the court.

How to apply for Guardianship
This is done in the Sheriff Court. The best person to act as a guardian is usually a family member or very close friend as they know the Adult better than anyone else and are best placed to know what the Adult would have done themselves.
We will explain the procedure to you and keep you informed every step of the way.

Legal Aid for Welfare Guardianship
Where you are applying for welfare guardianship alone you are entitled to legal aid to cover the cost of the court procedure. We will provide a fee quote for the cost of initial advice and making the legal aid application.
For Intervention Orders and Guardianships where legal aid is not available we can provide you with an estimate of the likely costs.