Sadly, people are all too often unable to manage their own affairs. The legal term for this is “incapacity”. We are deemed to be “incapable” of looking after our own affairs in the eyes of the law as a result of illness, age or accident. Whether it is sudden and quick, or the deterioration takes place over a longer period of time, our affairs will still need to be managed. The law provides for this by allowing guardianship orders to be put in place so that the incapacitated person’s affairs can be managed.
Guardianship orders are orders granted by the court when a person becomes incapable of managing their financial affairs and there is no power of attorney in place. A court can also grant an intervention order.
The difference between the two, as their names suggest, is that a guardianship order is grants an ongoing power to manage a person’s affairs, whereas an intervention order deals with a specific issue.
When making an application to the court for a guardianship order, the potential guardian will have to state what powers are being applied for and state why these powers are being sought. Powers under a Guardianship order fall into two main categories: Welfare powers and property/financial powers.
Powers under a guardianship order
Welfare powers apply to personal issues such as healthcare, residence, contact with others etc.
Property and financial powers obviously apply to the person’s property and finances. So things like: bills; pensions; investment, the buying and selling of property etc are all things that are dealt with by seeking property and financial powers under a guardianship order.
Who can be appointed a guardian under a guardianship order?
Normally, it is the next of kin or another close relative who is appointed under a guardianship order. Often they rely on legal advice in exercise of their powers. Legally speaking, anyone can be appointed a guardian.
In Scotland, it is possible to have more than one guardian appointed. This gives the convenience of splitting the above powers. One guardian can deal with the persons welfare and another, often a solicitor, can be appointed to deal with financial and property transactions. Depending on the circumstances of the situation the powers can be shared, joint guardians can be appointed and substitutes names should an existing guardian be unable to fully exercise their powers.
It is the court who appoints guardians and as such, the process can be difficult and complex. Gibson Kerr will help you through this process and can act as solicitor guardians.