Understanding Guardianship in Scotland
Often people assume that if they were to lose their ability to look after their financial affairs, or to make their own care decisions then their spouse or children will have the power to access bank accounts and make any health care decisions for them.
That’s not necessarily the case.
In the event that you were to lack capacity, only those that you have nominated as ‘Attorney’ under a valid continuing (property and finance) or welfare Power of Attorney (PoA) are able to act for you. So what happens if you chose not to create a power of attorney and lose capacity, or lose capacity suddenly without having one in place?
In these circumstances a person has to apply to your local Sheriff Court to be appointed as your ‘guardian’ – even if this is the very person to whom you would have granted a POA.
Applying for guardianship
An application for the appointment of a guardian has to be accompanied by three formal reports – two from doctors, one of which has to be a psychiatrist and one from a mental health officer (a specialist social worker). These have to be within set dates of each other, so managing the timetable of getting these reports completed can be tricky.
This, as well as the formal court application form which needs completing, means people usually choose to use a solicitor to do the application. Of itself the process isn’t a complicated exercise but getting everything in order when you haven’t done it before is an undertaking.
Engaging the services of a solicitor who is familiar with this specialist work will give you peace of mind that the application has been drafted correctly, and at the end of the application you will have the Court Authority you need to be able to look after your loved one and their affairs.
It can take many months (typically 6-12 months) to get the various reports together. In that time your family can be left in a predicament, possibly not being able to pay bills or meet other commitments as they are not allowed to access your monies until an appointment of a guardian is made.
Checks on guardians
The Sheriff will determine the suitability of the proposed guardian. The person being nominated would usually be appointed but there is no guarantee.
A guardian can be appointed to manage your property and financial affairs, or your health and welfare, or a combination of both.
It is worth noting that if there are no suitable family members or friends, perhaps due to none wishing to act or where there is a conflict or dispute, the Court can appoint a professional person to act as your guardian.
Costs of guardianship
As well as being lengthy, a guardianship is expensive, as there is ongoing annual supervision of the guardian by the Office of the Public Guardian (OPG), for which there are fees to be paid.
The supervision requires the person to submit a reconciliation of accounts and to explain what they have spent funds on, in order to ensure that the affairs of the person are being managed appropriately.
This process of supervision can make guardians anxious and is an onerous undertaking for many.
Power of Attorney is the better option
The responsibilities of a guardian will depend on the powers that they have been granted by the Court but in essence are the same as those of an attorney appointed with equivalent powers under a PoA – which does not come with the same annual supervision, and associated costs.
You will see where I am going with this, which is to implore you to consider doing a power of attorney, now, before you lose the capacity to do so. You can find full information in my One Stop Guide to Power of Attorney.
About the Author
Sandra McDonald was the Public Guardian for Scotland for 14 years, she now draws on this experience to offer independent mental capacity/incapacity advice and training. More information about Sandra and the courses she offers can be found on her website EX-PG Ltd
England and Wales
You can read more about the Court of Protection in England and Wales here.