There is a common misconception that if a close relative is incapable of making their own decisions, you are automatically able to speak on their behalf. The reality is that you have no automatic right to act for anyone.
For this reason, it is crucial to sign power of attorney as early as possible and encourage your family members to do the same. A power of attorney allows you to plan ahead by appointing a trusted individual (or individuals) to make decisions on your behalf if you are ever incapacitated. You can read more about powers of attorney here.
If a close friend or family member loses capacity and does not have a power of attorney in place, there are other options available to allow you to act on their behalf and protect their interests. The most common of these is a guardianship order. The steps to take to become a legal guardian via a guardianship order are listed below.
1. Ask yourself: is a guardianship order appropriate?
Before becoming a legal guardian, you should obtain legal advice to confirm whether the order is appropriate in the circumstances. An order will only be made in your favour if it is necessary to protect the adult's interests and if it will benefit the adult.
2. Make the application to become a legal guardian
Assuming the order is appropriate and there are no lesser measures available that would allow you to act on behalf of the adult in question, an application is made to the adult's local sheriff court to appoint you as a legal guardian. A "summary application" is drafted which sets out the powers you are seeking to allow you to act on the adult's behalf. You can apply for financial powers (to make decisions about the adult's finances and property) or welfare powers (to make decisions regarding the adult's personal health and wellbeing) or both. You must apply only for those powers you require and the application must be tailored to the particular circumstances of the case.
3. Provide supporting reports
The application must be supported by 2 medical reports (one must be by a psychiatrist and the other is usually provided by the adult's GP). If the application is for welfare powers you will also need a mental health officer's report. The mental health officer is appointed to the case by the adult's local authority. If the application is for financial powers you may need a report (usually provided by a solicitor or an accountant) confirming your suitability to be appointed as financial guardian. Strict time limits apply and the reports must be submitted to the sheriff court with the application within 30 days.
4. Attend the hearing to become a legal guardian
A hearing date is then set and the application is intimated on the adult's closest relatives, their carers, the Mental Welfare Commission and the Office of the Public Guardian ("OPG"). These parties are given an opportunity to appear at the hearing and make representations or oppose the order if they do not think it is appropriate in the circumstances.
Assuming the sheriff is satisfied that the order is necessary and will benefit the adult, you will be appointed as guardian at the hearing. Guardianship orders are usually granted only for a time limited period (usually 3 years).
Becoming a legal guardian can be a major undertaking and you should understand the nature of your role, your duties and responsibilities before you commit to the appointment.
Our legal experts are experienced in making guardianship applications as well as in advising appointed guardians on the exercise of their duties. Please get in touch with us if you think you may need to apply to become a legal guardian for a friend or a member of your family or if you have already been appointed and you need advice about how best to fulfill your role.
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