A recent Court of Session case has demonstrated the importance of Guardianship Orders when someone becomes unable to take care of their own affairs.
Mary Gallacher died on the 31 March 2011 at the age of 96. She had been suffering from advanced dementia at the time when she signed a deed of disposition to transfer the ownership of her home to other family members. Her niece, Shelia Ritchie, was the executor of the estate and sought a reduction of this disposition on the basis that her aunt was incapax (lacking capacity) when the property was transferred. The executor is the person nominated by the deceased to wind up the estate by making a calculation of the estate, paying debts and paying out to the beneficiaries in accordance with the will and succession law. Ms Ritchie argued that her aunt did not have the mental capacity necessary to grant the disposition due to her dementia.
After hearing evidence from various medical professionals, the Judge, Lord Clarke, ruled that Ms Gallacher did not have the necessary mental capacity to transfer the ownership of her home and granted a deed of reduction. Lord Clarke said, "In all the foregoing circumstances I have reached the clear conclusion that, on the evidence, the pursuer has established her case that on the balance of probabilities, the deceased, on 2 July 2007, did not have the necessary capacity to grant the disposition."
Guardianship Orders
Situations where a family member is losing the ability to handle their own affairs can be incredibly challenging and upsetting. A Power of Attorney allows a person to transfer the authority to another person to take care of their affairs. This may be because they are leaving the country for some time but is most commonly used in situations were age, illness or disability are making it more difficult for the person to make decisions about financial and legal matters.
If a Power of Attorney is not in place, then a Guardianship Order must be sought to look after the affairs of a person who has lost capacity. Legal aid is automatically available in Guardianship Order cases, and although many law firms now refuse to take such cases on a Legal Aid basis, Family Law Glasgow is happy to do so. Legal Aid may also be available for the initial costs involved with getting a Guardianship Order application started. A Guardianship Order application will typically be made by someone who is a close family member of the adult who has lost capacity, but it can be done by anyone who has an interest in the adult. Being someone's guardian is a considerable responsibility. Having financial duties, welfare duties or both is possible.
Guardians with financial duties are supervised by the Office of the Public Guardian. An inventory and management plan must be submitted to the Office of the Public Guardian to ensure that guardianship powers are not being abused.
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