Advice and guidance when capacity has been lost.

You may already be aware of the usefulness of having a Power of Attorney in place. A Power of Attorney is a person able to act on your behalf in case of an accident, or to help with your finances and perhaps welfare matters in later life.

Where an adult has a Continuing Power of Attorney in place, it remains effective even after the grantor has lost capacity to deal with matters of finance and perhaps welfare decisions, if welfare powers are included in their Power of Attorney.  When capacity has been lost, the matter becomes one of guardianship.

What is a guardianship?

A guardianship order is required where an adult (a person aged over 16) is not able to look after their own affairs.
Often a meeting with a legal advisor is only arranged after the adult has encountered difficulties in communicating or carrying out financial transactions. Before a Power of Attorney may be granted, the adult must be able to understand the consequences of granting the powers. If this basic requirement is not met, the alternative is to obtain a Guardianship Order. Legal advice should be sought as this requires a Court appointment, although being legally represented is not a requirement.

Who may apply for a guardianship?


Any person having an interest in the adult may apply for guardianship. This may be, for example, a relative, a carer or a professional person (solicitor, accountant etc.). The head of Social Work of the local authority may also be appointed. More than one guardian may be appointed, and a substitute may also be named, should the appointed person, for whatever reason, be unable to act.

What is the application process?

If appropriate, an application is made to the local Sheriff Court. Inevitably, there are costs involved, such as court fees of £129 for the initial application, the cost of two medical certificates and if a solicitor is used, legal fees, unless legal aid is available. The application would include a list of the powers required, such as dealing with finances or selling a house. Powers to make welfare decisions, for example about residential care or consent to medical procedures, may also be sought, if the adult is unable to give such instructions. The applicant must also give details of their character and background, plus any relevant financial or investment experience. Letters of reference may be required by the Court.
The Sheriff will then consider the application. If approved, an order is granted usually for a period of three years but this may be for longer, even for the adult’s lifetime.

How does a guardianship work in practice?

Once the guardianship order is obtained, the guardian must register the Court Order with the Keeper of the Registers of Scotland if there is a house belonging to the adult. An inventory of the adult’s property must be completed and a management plan submitted to the Office of the Public Guardian within 3 months of receiving the certificate of appointment. A fee is charged for consideration of the documents, ranging from £56 to £1,295, depending on the value of the property to be managed by the proposed guardian.
The Office of the Public Guardian, located in Falkirk, is entrusted with supervision of guardianship orders dealing with the adult’s finances and property.
The guardian has to submit an annual account to the Public Guardian, detailing all their transactions with the adult’s property. The first review of an annual account incurs a fee of between £82 and £1,007 charged on a sliding scale, according to the value of the property held. A fee is charged annually thereafter.

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