The Process

Usually only one meeting is required - which may be arranged at your home - after which communication is by direct dial phone, post and email. We appear at almost all courts in Scotland with distance being no object when dealing with guardianship. We regularly meet clients in Glasgow and Edinburgh and throughout central Scotland with other clients from as far apart as Aberdeen and Ayr travelling to meet us to take advantage of our expertise and legal aid facility.

An application to court must be made for the guardianship appointment to be made, stating who is to be appointed, why that person is appropriate and what powers he or she should have.  Those making application must have an interest in the adult’s affairs or welfare.  Applicants who claim an interest in the adult’s welfare must intimate the application to the local authority.  If a state of incapacity exists in a person and no one else has made or is likely to make a guardianship application the local authority has a duty to do so to protect the adult’s affairs or welfare, albeit in our experience, most families prefer to take on this welfare responsibility rather than leave this to the local authority.

The application is made by what is called “Summary Application” to the local Sheriff.  Before granting any order the Sheriff must be satisfied that the adult suffers “incapacity”.   Consequently evidence as to the incapacity of the adult must be lodged by the applicant. Typically the evidence will comprise two recent medical reports, one of which must be from a psychiatrist.  Other reports will be required from a mental health officer and / or solicitor depending on what powers are sought.

The court application can proceed in various ways – the Sheriff has discretion on what steps may be required before any orders are granted.  In the vast majority of cases however the Sheriff will be satisfied with the written evidence submitted and will grant Guardianship or Intervention Orders without requiring evidence to be given in open court.

On the other hand it is open to any interested parties - whilst this is usually immediate family members it includes anyone who has an interest - to contest the granting of such orders. Whilst this is rare in such cases evidential court hearings would normally be required.

Guardians

Who can be appointed as a guardian? Guardians are always individuals except in certain welfare only cases where the “Chief Social Work officer of the Local Authority” is appointed. In the latter case effectively a position is being appointed – usually where no close family exist or where no family members wish to be appointed. Whilst close family members are usually appointed, but frequently solicitors are often appointed to deal with in the financial aspects of guardianships where the family don’t have the time to deal with the administrative burden of doing so. Whoever applies, this person must be approved as a “suitable” person by the Sheriff who must consider certain criteria laid down in the Adults With Incapacity (Scotland) Act. The criteria are largely matters of common sense and include, for example, the potential Guardian’s accessibility to the adult and the ability of the individual to carry out the functions of a guardian. Close relatives - mainly spouses and children - are often appointed but they have no automatic right of appointment by reason of being a close relative and still have to pass this suitability test.

Caution (pronounced Cayshun)

Finding Caution – what this means and what it costs

When granting a Guardianship or Intervention order, a Sheriff has to request that the person being appointed “find caution”. This is a sum of money to be paid by the person being appointed which is effectively an insurance premium against improper or mistaken actions taken by the guardian causing loss to the adult. Caution is effectively obtained by paying a premium to an insurance company. Lay, non- professional guardians may find it difficult to find caution, which is provided by a limited number of insurance companies, and often only a professional, such as a lawyer. Fortunately the Sheriff does have discretion to not ask for Caution if the person is suitable to be appointed but is unable to arrange caution. The cost of caution largely depends on the value of the adult’s property and therefore the risk associated with dealing with it. Typically however it can run at 5% of the value of the property – although each case is considered separately.