It is a common misconception that parents of children with additional support needs will be able to continue to make decisions on behalf of their child once they have reached the age of sixteen if they do not have legal capacity. However, once a child turns sixteen, they are legally an adult and parents have no automatic entitlement to continue making decisions on their behalf.
To continue making those vital day-to-day decisions regarding their welfare, care, medical treatment and finances, parents will need a guardianship order. A guardianship order is granted by a Sheriff Court and ensures that parents can continue to make decisions which are in the best interests of their child.
What is a guardianship order?
A guardianship order is granted by the court and allows the appointed guardian to make decisions on behalf of adult with incapacity. Anyone with an interest in the financial and property affairs and/or welfare of the adult can apply to have a guardian appointed to make decisions on behalf of an incapable adult.
The applicant can apply for financial powers, welfare powers or both. The court must be satisfied that the powers being sought are appropriate and necessary to ensure the adult's wellbeing. The court will only grant a guardianship order if it is the least restrictive option available in the circumstances. If the court believes that there are more appropriate means of safeguarding the adult which are less restrictive, the order will be refused.
Once the order has been granted, the appointed guardian(s) will have the power to make decisions within the scope of the order. The order will detail what powers are given to the guardian, but they can include powers relating to the adult's property, financial matters and personal welfare.
Why might a guardianship order be needed?
If you have a child with additional support needs, who does not have capacity to make their own decisions when they reach the age of 16, you will likely want to continue making decisions regarding their finances and welfare. A power of attorney may not be an option if your child does not have capacity to prepare one. You may need formal authority in the form of a guardianship order to sign contracts on their behalf (such as care plans), deal with their finances, and consent to medical treatment on their behalf (such as blood tests or vaccinations).
Why is it important?
Having a guardianship in place allows for continuity and ensures that you can continue to make decisions which are in the best interests of your child.
When should you start applying?
It is possible to make an application up to 3 months before your child's sixteenth birthday. Starting the application process as soon as possible is sensible as it can be lengthy and cumbersome. If you do not submit your application in advance of their birthday, you can make an application at any point after they have turned sixteen
The sooner the application is submitted the better.
How can we help?
We have a team of specialists who are more than happy to help. Our team is highly experienced in this area of law and can assist you in both making your application and in every step of the court process. Please get in touch if you need help applying to become a legal guardian.
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