Chapter 3: About guardianship and intervention orders
What are guardianship and intervention orders?
Guardianship and intervention orders provide legal authority for someone to make decisions and act on behalf of a person with impaired capacity, in order to safeguard and promote their interests. The powers granted under an order may relate to the person's money, property, personal welfare and health.
An intervention order is appropriate where there is a need for a 'one-off' decision or action. A guardianship order gives authority to act and make certain decisions over the long term. An application can be made for a financial and/or welfare order depending on the needs of the individual.
The application, which must be accompanied by certain reports (see Appendix 1), is made to the sheriff court. The sheriff decides if the adult needs a guardian and if the person who wishes to be the guardian is suitable. Once granted, the order is registered with the Office of the Public Guardian (Scotland) and can then be put into operation.
Who can apply for an order?
Anyone with an interest in the adult, normally a family member, but possibly a friend, can apply to the sheriff court to become a welfare and/or financial guardian or intervener. Usually the person who wishes to act for the adult makes the application and nominates themselves.
Only one person is allowed to be nominated to be an intervener, but more than one person can apply to have joint guardianship. Joint guardianship is often advisable as it enables tasks to be shared, and provides cover should one person become temporarily unavailable. Some families find it helpful to have one person dealing with welfare matters and the other with financial affairs. Alternatively, a substitute guardian may be nominated at the time of making the application. This would be to ensure continuity in the event of the guardian being unable to continue for any reason. (It is also possible to apply for someone else to become a joint or substitute guardian later on.)
The sheriff will normally only appoint relatives of the adult as joint guardians, i.e. their parents, spouse, partner, children or siblings. However, the sheriff can appoint a non-relative as a joint guardian if this is the best solution in the circumstances, but you would need to make a special case.
It is possible for someone else, such as the local authority, to make the application to the court and nominate the person who wishes to be the guardian or intervener.
For example, you might want to be a joint guardian with personal welfare powers, while financial guardianship is exercised by a professional person.
if the local authority has assessed the needs of the adult and considers guardianship necessary, there will be a discussion with you, the carer, about how the application might be taken forward. Everyone may agree that you are the best person to act as guardian - however if you find it too daunting to make the application yourself, the local authority could make the application and nominate you. The local authority would only do so if they felt it was appropriate.
The local authority has a duty to apply for an order in circumstances where the person has been assessed as needing one, but there is no one else to do so. Where welfare powers are needed the Chief Social Work Officer is appointed (with authority delegated to a health or social care worker) but in respect of financial powers, the local authority will usually nominate a solicitor.
The number of guardianship applications made each year has grown to over 1,500 (2009-10). In 2008-09, around 55% of appointments were for people with dementia, 31% for people with a learning disability, 4% for people with an acquired brain injury and 4% for people with a mental illness (plus a small percentage for people with other conditions). For more statistics, visit the websites of the Office of the Public Guardian and the Mental Welfare Commission.
When you might consider the need for guardianship
- You may have become aware that the person can no longer act or make decisions to safeguard or manage aspects of their financial affairs, property or personal welfare.
- You are aware that the adult has complex and or significant care needs but that he/she is unable to seek help or give informed consent to services. In addition, there may be strong conflicts within the family or with the adult as to how these needs should be met.
- You are the parents of a young person with a learning disability who is over the age of 16 or is about to reach the age of 16 and is unable to make decisions about e.g. future accommodation or health care.
- You are the parents of a young person with complex and multiple learning disabilities who will, throughout the whole of their lives, need someone to make all significant decisions for them.
- You already have powers in relation to the adult for example, as an attorney, but the scope of your powers is not enough to allow you to take certain actions or decisions on their behalf.
- You have concerns about the ability of someone already appointed (such as an attorney) to take the necessary action or decision, and you are considering if you or someone else should be appointed as guardian with new powers.
the adult may have appointed a financial attorney at a time when he or she had modest means. The adult's estate may have increased, for example, by inheriting a house and you have doubts about the willingness or competence of the financial attorney to take on the responsibility of selling the house and investing the proceeds for the adult's benefit.
Guardianship - powers that can be applied for
An application for guardianship must specify the 'powers' that you want as these, if approved by the sheriff, will be stated on the guardianship order. The term 'power' is used to describe the area or areas of decision-making for which you need authority. The Act allows wide flexibility, to enable 'powers' requested to be tailored to meet the needs of the adult. Only powers that are needed now and in the foreseeable future should be requested. An application for an order may be for financial powers, welfare powers or for both.
The Act makes general provision for the following powers to be specified in an order.
- power to manage the property or financial affairs of the adult, or the parts of them specified in the order;
- power to authorise the adult to carry out some transactions or categories of transactions as the guardian may specify (this is in line with the principle that incapacity is not 'all or nothing' and the adult may be able to deal with certain areas of decision-making).
- power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order.
A guardian is allowed to act as the adult's legal representative in relation to any matter within the scope of the powers granted in the guardianship order (unless the sheriff directs otherwise).
When might you consider the need for an intervention order?
This may be appropriate where you only need to carry out a specific action or make a 'one-off' decision on behalf of the adult.
Financial intervention orders
A financial intervention order could be suitable in the following circumstances:
- for dealing with the adult's interest in the estate of a deceased relative;
- taking legal action to protect the adult's interests;
- setting up a trust;
- opening, operating or closing an account held by the adult;
- dealing with the adult's income tax;
- selling moveable property held by the adult to obtain necessary income, e.g. jewellery, paintings, antiques, subject to consideration of any bequests;
- winding up the adult's business affairs;
- a transaction to buy or sell property;
- acquisition or sale of the adult's home (dwelling house - special provisions apply - see page 50).
Welfare intervention orders
A welfare intervention order could be suitable in the following circumstances:
- you have become aware of a specific need which the adult cannot meet by making a decision personally;
- you already have powers in relation to the adult, for example, as an attorney or guardian but the scope of your powers does not extend to taking the action or making the decision in question;
- where the person is unable to give consent to significant medical, dental or other treatments, or operations.
A guardian or intervener cannot have powers to:
- consent to marriage on behalf of an adult or to make a will;
- consent to specific treatments regulated under the Adults with Incapacity Act; or consent on behalf of the adult to certain medical treatments covered under the Mental Health (Care and Treatment) Act 2003;
- place an adult in a hospital for the treatment of mental disorder against his or her will. If the adult resists treatment for mental disorder then an application will need to be made by a mental health officer for an order under the Mental Health (Care and Treatment) (Scotland) Act 2003;
- sell property without the Public Guardian's permission in principle and with regard to cost.
Other statutes or rules of law may preclude a guardian or intervener from exercising certain powers. If you are in doubt as to what powers you can exercise, you should seek legal advice.
Whatever your circumstances, if you decide that the person you care for will benefit from an order, do seek further advice. See chapter 5 for the steps you need to take if you wish to apply for an order.