Young Adult Guardianships

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• Young Adult Guardianships

Adult Guardianships allow another person to make decisions on your behalf regarding welfare, property and/or financial matters.  People often mistakenly believe that  Adult Guardianships are  only available to protect and safeguard the welfare and/or financial needs of the elderly.  However, there are also young adults who may also need this protection and safeguarding for welfare, property and financial matters. 

The following checklist explains the process and circumstances where Adult Guardianships may be relevant for younger people. They also highlight some of the key areas to consider if you think you may need to apply for one.

Turning 16 years old

• When a  young person turns 16 the law assumes they  are no longer  ‘a child’. Legally this means they are in a position to make their own decisions  regarding  their welfare, property and/or financial matters. Therefore, third parties, including the young person’s parents, are no longer able to make such decisions on their behalf.  This includes young adults who may have a condition or diagnosis that means it is not possible for them to make an informed decision in relation to their welfare, property and/or financial matters.
• To help safeguard young adults in this situation a Guardianship Order can be applied for.  The timing is important in such matters. A Guardianship Order can be granted  up to three months before a young adult’s 16^th birthday, but will not come into effect until they turn 16.
• A Guardianship Order can be applied for after a young adult has turned 16 if it has not been applied for within the three months prior to the young adult’s 16^th birthday.

Guardianship Order

• The Court grants a Guardianship Order. It details who has been appointed Guardian, what powers they have been provided with and how long the  guardianship will bein place.   For a young adult this is normally three years in the first instance.
• The appointment of Guardian can be a sole appointment or a joint appointment.  Joint appointments are usually limited to three people.
• It is useful when drafting a Guardianship Order  for young adults  to include a Substitute Guardian appointment.  A Substitute Guardian is a ‘Guardian-in-waiting’ who will step into the Guardian role if the appointed Guardian/s are no longer able to act on an ongoing basis.
• A Guardianship Order can be flexible to deal with changing circumstances to meet the young adult’s needs.  It can be varied or amended at any time during the lifetime of the Order and this is done by application to the Court. 
• A Guardianship Order can be renewed by applying to the Court before the current Order expires.  If the application is submitted to the court before the current Order expires,  the current Order remains in place until such time as the renewal application is decided by the court.  It is a good idea to start the renewal process at least five months before the current Order expires to ensure the current Order does not lapse.
  

Legal Aid

If the Guardianship Order you are looking for includes welfare powers then Legal Aid is automatically available to you from the Scottish Government. Evidence showing the Guardianship Order is appropriate will need to be supplied to and approved by the Legal Aid Board.  When granted, Legal Aid fund all of the court work required in obtaining the Order, which is the majority of the work involved.

The Process

You will need to appoint a Solicitor to apply for a Guardianship Order on your behalf.  They will guide you through the process.  This process has a number of stages:-

1. Defining the terms of the proposed Guardianship Order
2. Preparing the court papers
3. Obtaining the required expert reports (social work/qualified person and medical)
4. Submitting paper to the court and attending the court hearing
5. Keeping the process on track and updating all relevant parties

Expert involvement

As mentioned above, three expert reports are required.  One from the social work department (or in cases where property and/or financial powers only are sought, a report from a sufficiently qualified person), and two medical reports.  Your Solicitor will obtain these reports on behalf of the proposed Guardian and the cost of these is covered by Legal Aid when it is in place.

Timings

If your child, or a child you know well and have an interest in, is 15 years old, and you think they may benefit from the safeguarding an Adult Guardianship provides, you should consider contacting a Solicitor.  The process of obtaining a Guardianship Order can take anything from three to six months. Therefore it is sensible to start discussing  the young person’s needs with a suitably  qualified Solicitor shortly after their 15^th birthday.

How can we help?

RCCW’s  Kirsten Dunford has extensive experience in this field of work and would be delighted to assist you.  She can be contacted on 01224 332400 or at Kirsten.dunford@raeburns.co.uk.