Planning for the care of your loved ones is so important, but it is something that many of us tend to avoid. Whether you are making decisions about your own children or someone else you are responsible for, for example, an elderly parent or relative or someone with disabilities, you are not alone.
There are two types of definitions for guardianship, and in this guide, we will explore them both, so you can be as prepared as necessary.
What is Guardianship?
1st Definition: Refers to the relation to a person who is a legal guardian of a child, also known as the child’s legal representative. Parents may want to appoint a guardian for their child to ensure they are looked after if they die unexpectedly.
2nd Definition: Refers to the appointment of a guardian by the court following an application made to the Adults with Incapacity Scotland Act 2000. This court appointment authorises a person to make decisions on behalf of an adult with incapacity. Anyone over the age of 16 is considered an adult, therefore when a child who does not have capacity turns 16, their parents will have to apply for a Guardianship Order to make decisions on their behalf.
Becoming a Child’s Guardian
If a child cannot live with parents for any reason, they will live with another trusted adult who could be a family member or friend. If this is the case, you will need to apply to become the child’s guardian where you will get full ‘parental responsibilities and rights’ for the child. This allows you to make important decisions for them, for example, where they live and their upbringing.
There are 2 ways people can become a child’s guardian:
- They are made a child’s guardian in a will or written document signed by the parent if they die.
- They ask the court to appoint them as guardian.
If you are asked to become a guardian in a will or written document signed by the parent and another parent is still alive, their rights do not change, which means it is up to all parties to agree on what is best for the child.
It is recommended once you become the child’s guardian to appoint another legal guardian for them in your will.
Becoming a Guardian for an Adult with Incapacity
If you are close to an adult who is unable to make decisions for themselves regarding their financial well-being or welfare, a guardianship order for this person is worth considering.
What is a Guardianship Order?
A guardianship order appoints a person to act and make decisions on behalf of an adult with incapacity. It includes decisions on medical treatment, care arrangements and financial matters on an ongoing basis.
The circumstances range for which a guardianship order is needed. You may know an adult who is unable to give consent for themselves. Or, you may know a young person who has just turned 16 with a learning disability that prevents them from managing their own affairs. Additionally, in extreme circumstances, you may be concerned about the conduct of someone currently appointed as power of attorney for the adult and feel that a guardianship is necessary to protect them.
What Powers Can a Guardianship Order Provide?
The powers given from a guardianship order can cover receiving income, paying bills, making contracts, buying and selling things, managing money, making decisions about accommodation, care services and consenting to medical treatment.
Generally, the powers are split up into financial guardianship and welfare guardianship.
Having a financial guardianship will provide the authority to operate any account containing the adult with incapacity’s funds and receive any income of their behalf, for example, pensions or benefits.
Having a welfare guardianship will provide the authority to decide where the adult with incapacity should live, as well as access to their personal information.
With this being said, it is important to remember that guardianship orders should not restrict the adult with incapacity’ freedom any more than is necessary.
How to Apply for a Guardianship Order
A couple of months before your child’s 16th birthday, you should take legal advice and apply for a Guardianship Order. This will give you enough time for an application to be drafted and lodged at court, so the order is granted in advance and powers take effect on the date of their 16th birthday.
Depending on the circumstances, the court decides how long the guardianship order should last for. Generally they are granted for a period of three years.
Who Can Apply for a Guardianship Order?
Anyone who has an interest in the adult can apply for a guardianship order and can be applied for by more than one person as joint guardians. This can be useful as tasks can be shared among different family members.
If the adult with incapacity does not have any family members in their life, a friend of the adult can apply for a guardianship order.
Difference Between a Guardianship Order and Power of Attorney
Whilst a guardianship order and power of attorney grant the same legal authority, the differences lie with how these measures are applied for and how.
For example, a guardianship order is applied for by a relative or other trusted person on behalf of someone after they have lost capacity. Whereas power of attorney allows an individual with full capacity to appoint another person to make decisions for them in the future, in case they lose capacity.
A guardianship order is applied for through the courts and usually lasts for a fixed period, however, power of attorney can be drawn up by a solicitor and will continue unless the person revokes authority or dies.
Cost of Setting up a Guardianship Order
The cost of setting up a guardianship order can vary depending on any legal costs involved, fees for medical reports and court fees.
Neil Kilcoyne & Co Family Law Solicitors
We recommend getting legal advice from a solicitor who can talk you through the process. If you are looking for experienced family law solicitors, at Neil Kilcoyne & Co, we have 25 years experience within the field. We aim to achieve the outcome you want but more importantly deliver advice that is individually tailored to your needs. Get in touch with us and see how we can help.