Guardianship Order Lawyers Glasgow, Scotland
A Guardianship Order gives a guardian power to make decisions on behalf of another person who lacks the legal capacity to make such decisions themselves, usually as the result of mental or physical illness.
Family Law Glasgow are a team of trusted and friendly solicitors who handle all enquiries with care and compassion. Free Legal Aid funding is automatically available for Guardianship Orders so you do not need to worry about costs. Contact our friendly lawyers today on 0141 4135 543 or complete our online enquiry form.
What is a Guardianship Order?
A Guardianship Order can give you authority to act on the behalf of an adult who does not have the capacity to make decisions for themselves, in regards to matters such as medical care, finances, living arrangements and care. An application requires to be made to the Sheriff Court by the person seeking the powers and the process requires various medical reports to be provided along with a report from the Social Work Department.
This is called a suitability report, and a Mental Health Officer prepares it from the Local Authority. All of these reports are submitted to the local Sheriff Court, and the Sheriff will decide whether to grant a Guardianship Order after considering the reports and hearing from all relevant parties.
Before granting a Guardianship Order, the court must be convinced that this is the least restrictive way organising someone's affairs, and will consider whether the order would be of tangible benefit in the circumstances. It is important, before making an application for guardianship, that:
- The wishes of the individual the application concerns have been taken into account;
- It is established that a person would benefit from an order being granted;
- There is clarity on whether the individual who is to be subject to an order is no longer capable of managing their own financial interests of welfare needs; and
- To confirm that the person who is to become the subject of an order does not owe any responsibility to anyone else, e.g. a child who has a learning disability and requires additional care.
A Guardianship Order may be suitable if there is no Power of Attorney in place.
Various legal powers can be sought in a Guardianship Order, including financial and welfare powers. The Order is usually granted for a 3-year period and during this time the Office of the Public Guardian monitors the Guardian to ensure they are acting in a manner consistent with the best interests of the adult.
Financial and Welfare Guardianship Orders
Legal advice should be obtained prior to making an application for a Guardianship Order as various powers can be requested, and each adult’s circumstances will require different powers to be considered and then sought.
All powers sought should be for the benefit of the adult and should be the least restrictive option. The Act always looks to promote as much independence for the adult in actions and decision making as is in their best interests, wishes and abilities. Thus, the application has to explain what powers are being sought and why they are being sought.
Welfare powers, financial powers or both welfare and financial powers can be sought.
Financial powers include:
- operating bank accounts;
- claiming benefits, tax issues;
- dealing with investments;
- seeking finance;
- dealing with the adult’s property;
- making gifts;
- purchasing goods and services.
Welfare powers include:
- deciding where the person lives;
- giving consent to medical treatment;
- raising legal matters.
How Do You Apply for a Guardianship Order?
If it is not convenient for you to visit us for an initial meeting to start the guardianship process, our lawyers will come out to meet you at home.
The guardianship order application is lodged in the Sheriff Court in the area where the adult who has lost capacity lives. In the West of Scotland the Sheriff Courts are Airdrie Sheriff Court, Hamilton Sheriff Court, Glasgow Sheriff Court and Paisley Sheriff Court.
Airdrie Sheriff Court
Airdrie Sheriff Court is located in the centre of Airdrie at Sheriff Court House, Graham St, Airdrie ML6 6EE. This is a short walk from Airdrie Rail Station and there is a bus stop outside of the court. The court does not have public parking but there is public parking available in nearby Hallcraig Street.
This would be the nearest Sheriff Court for adults living in North Lanarkshire areas such as Coatbridge and Cumbernauld.
Hamilton Sheriff Court
Hamilton Sheriff Court is based in the centre of Hamilton town at Sheriff Court House,4 Beckford Street, Hamilton, ML3 0BT. The court is well serviced by public transport. Hamilton West Rail Station is a 5 minute walk away from the court and serves Bellshill, Motherwell, Uddingston, Blantyre and Larkhall. There are buses to Bothwell, Strathaven, Stonehouse and Holytown from stops in the streets close to the court.
Applications for adults living in Hamilton, East Kilbride, Wishaw and Carfin would be lodged at this Sheriff Court.
Glasgow Sheriff Court
Glasgow Sheriff Court is located in the centre of the city at Sheriff Clerk's Office, 1 Carlton Place, Glasgow, G5 9DA.
There are some parking facilities located near to the court and the court has excellent public transport links. The closest train station is Argyle Street Station which runs trains to areas such as Bridgeton in the East End of Glasgow. Glasgow Central Rail Station is also close to the court and this station serves areas all over Scotland. The nearest subway stop is Bridge Street which runs regular trains to the West End of Glasgow such as Hyndland, Byres Road and Hillhead. The subway also serves areas in the South Side of Glasgow such as Govan and Ibrox.
Applications would be lodged at Glasgow Sheriff Court for adults living in areas surrounding Glasgow such as Rutherglen, Bearsden, Milngavie, Giffnock, Dumbarton and Newton Mearns.
Paisley Sheriff Court
Paisley Sheriff Court is on St James Street in the centre of Paisley. The court is a few minutes walk from Paisley Gilmour Street Rail Station where there are regular trains running to Glasgow. The main bus stop on Gauze Street is also very close to the court. Members of the public can park in the pay and display facility on Glen Street.
Guardianship order applications would be handled here for individuals living in areas surrounding Paisley, such as Renfrew, Johnstone, Bishopton, Houston, Port Glasgow and Kilmacolm.
Does a Guardianship Order Qualify for Legal Aid?
The Scottish Legal Aid Board (SLAB) automatically grant legal aid funding to Guardianship Order cases. The financial circumstances of the adult or any proposed guardians are not taken into consideration. This means that you do not need to worry about the costs of a Guardianship Order.
There are some initial costs involved with starting an application for a Guardianship Order. However, Legal Aid for the initial costs can be claimed through SLAB’s Legal Advice and Assistance scheme. The granting of Legal Aid will depend on an assessment of the adult who has lost capacity’s finances and will not consider the financial situation of the person who is aiming to become a guardian.
You can find out more about Legal Aid funding from the SLAB website. Contact our friendly lawyers today to discuss Guardianship Order funding.
When Does a Person Lack Capacity?
The legislation that governs Guardianship Orders is the Adults with Incapacity (Scotland) Act 2000. The Act outlines that a person lacks legal capacity if they are unable to:
- understand the information relevant to a decision
- make a decision based on the information given
- act on the decision
- communicate the decision
- retain the memory of the decision
Who Can Apply To Be a Guardian?
A family member, or often a carer or a close friend, usually seeks a guardianship order. In some circumstances, the local authority can seek such an order. However, any person who has the interests of the adult in mind can seek such an order. The application is then intimated to all parties who have involvement or an interest in the welfare of the adult, e.g. other family members. Joint guardians can be appointed, perhaps one with power to deal with financial matters and the other to deal with welfare issues.
The responsibility that guardianship involves should not be underestimated. It is advisable that before someone applies to become a guardian, they speak to an experienced solicitor on what the role of guardian involves. Taking on responsibility for someone else’s care can be a significant adjustment: people will find that there is now an additional demand on their time that needs their attention. It is better to have the benefit of comprehensive advice on what the legal consequences of becoming someone's guardian are, before entering into the process of approaching the courts, who will also be anxious to know that an applicant is fully aware of what a guardianship application means.
What Responsibilities Does a Guardian Have?
Notwithstanding the fact that anyone granted a guardianship order will be responsible for the interests of the person subject to the order, they also have other responsibilities too. Guardians do not act alone, and will be required to work in partnership with other bodies in order to ensure that the individual covered by the Guardianship order is well looked after.
Financial guardians are required by law to work with the Office of the Public Guardian – the statutory supervisor of financial guardians – in carrying out their duties. This will involve regular reporting to the Public Guardian on their actions, specifically the provision of a yearly account of financial decisions. This allows the Public Guardian to ensure that theirs is no mismanagement of an individual's financial affairs.
In the context of welfare guardians, supervisory authority will rest with the Local Authority. Supervision will typically involve the provision of on-going feedback in terms of how an individual is coping under the guardianship order, and what steps need to be taken – if any – to ensure that an individual that is subject to a welfare guardianship order has the necessary care given to them. It should be pointed out that other organisations are involved in the administration of welfare guardianships. In Scotland, the Mental Welfare Commission is actively involved in ensuring that individuals subject to a welfare guardianship order are being well cared for. It is not uncommon for the organisation to visit those subject to an order, so they can be satisfied that the powers granted under the order are being used properly.
Contact our Specialist Family Law Team Today
Would you like expert legal advice on guardianships orders in Scotland? The team members at Family Law Glasgow are amongst some of the most experienced solicitors practicing in the area of Scottish family law. Our team appreciate that becoming someone’s guardian can be a big adjustment, and believe it is vital that our clients are supported by a dedicated legal team in their decision-making.
Call our expert legal team in Glasgow today on 0141 4135 543 or complete our online enquiry form here.