“Incapacity“ is the legal term used to describe someone’s inability to look after their own affairs. Incapacity may be inevitable as a result of disability from birth otherwise it generally arises though illness or injury and someone can become incapacitated suddenly or slowly over time. A person incapacitated in this way is referred to as the “adult” in most of the legislation.
Guardianship Order and Intervention Order
When the legal state of “incapacity” arises and there is not in place any other way of dealing with the person’s affairs (such as a previously granted Power of Attorney) an application must be made to court for either an Intervention Order or a Guardianship Order. An Intervention order deals with a specific issue – such as for example applying to court to sell a person’s house to raise funds, and is usually dealt with at the same time as an access to funds application (also known as withdrawers powers) and is referred to later. On the other hand, a Guardianship Order is appropriate if long term and continuing management of a person’s financial affairs is needed. It will depend on the circumstances of the person with incapacity as to which order should be sought. These orders may operate alongside an existing DWP appointee application (this deals with the receipt of state benefits for the adult) and any continuing financial power of attorney or welfare power of attorney written by the adult prior to their incapacity but which did not contain the required powers to deal with unexpected issues, for example a specialist inheritance or trust issue.
Powers in Guardianship Orders
Someone applying to the court to become a guardian will have to state in the application to the court what powers he or she wishes granted and why they should be granted. There are two broad categories of powers which can be sought: Firstly, property and financial powers and Secondly, welfare powers. In simple terms property and financial powers apply to whatever the incapacitated person owns and receives and has to pay. Welfare powers apply much more to personal issues such as where the adult should stay, whom they should see, what activities the adult should indulge in and what day to day decisions on dress diet, healthcare and so on.
Sole Guardians, Joint Guardians, Substitute Guardians
Typically a close family member would seek appointment as guardian to an adult seeking all financial and property powers and welfare powers. That person may then exercise these powers personally – quite often with the help of a solicitor experienced in guardianship matters. It is also possible in Scotland to have more than one guardian appointed by the court. An example might be where a Guardianship Solicitor is appointed to act with powers over the incapacitated persons property and financial matters whilst a close family member is appointed to deal with welfare powers making day to day decisions on welfare issues. Such arrangements are not uncommon. Effectively therefore this is a joint guardianship. In addition a substitute guardian may be appointed who may step in if the first appointed guardian becomes unable to fulfil his or her duties. Indeed, there are various permutations of who can be appointed and what powers they require – the circumstances of each case have to be considered.
Where deputyship dealing with the financial affairs of an incapacitated person has been granted by the Court of Protection in England and these powers are being used to sell a home in Scotland, a Scottish court action is needed to recognise and register these deputyship powers. The Scottish Courts will also be asked to address a number of conveyancing matters - rarely narrated within the deputyship powers - and certain other ancillary matters required by the Office of the Public Guardian (Scotland) prior to registering these deputyship powers on the Scottish register of International Orders and issuing a certificate to this effect. It is this certificate which solicitors purchasing heritable property in Scotland owned by the incapacitated person will need to see before a sale can be concluded. We can arrange for International Orders granted abroad to be recognised and registered in Scotland after which heritable property in Scotland owned by the incapacitated person may be sold. In doing so, the Court converts the International Order into a format which is also recognised by all United Kingdom financial institutions thereby entitling the holder of the powers to deal with the incapable person’s affairs. However, this will not allow heritable property in England owned by the incapacitated person to be sold as this needs a separate order granted by the Court of Protection in England.