GUARDIANSHIP AND INTERVENTION ORDERS

If you lose legal capacity to make decisions and unfortunately have not previously signed a Power of Attorney when able to do so then an application for a n Intervention or Guardianship Order may be required. The local Sheriff Court will grant such an Order appointing and authorising somebody to act on your behalf.

An Intervention Order will be sought usually for a particular matter to be dealt with, e.g. arrangements are needed to enable you to be placed in a nursing home after a sudden severe stroke or to enable your house to be sold.   An Intervention Order will only give authority for that individual matter to be completed. The person appointed under the Intervention Order is called an “Intervener”.

More frequently, however, if ongoing management of your affairs is needed then a Guardianship Order will need to be sought.  Both Orders can deal with either financial or welfare matters or both in a similar manner to Powers of Attorney.

The Guardian or Intervener can be a relative, friend or professional person.  Obviously you cannot choose who is to act as by definition you no longer have capacity to make those kinds of decisions although the prospective Guardian or Intervener should try to ascertain your wishes insofar as this is possible.  We would make an application to the local Sheriff Court on behalf of the applicant.  The application has to have two medical reports accompanying it.  If it includes welfare powers then a report is also needed from the Chief Social Worker indicating that in their view the applicant is suitable and if it relates to financial matters then a report from someone with knowledge of the applicant’s suitability to act is also needed.  The timing of these reports is critical as they must not be dated more than thirty days from the date the application is sent to the Court.

This can all be a time consuming and costly process at a time when the family are having difficulty coping with your sudden incapacity and should be avoided if possible by the early granting of a Power of Attorney.

Once the Order is granted it will have to be registered with the Office of the Public Guardian. They are responsible, amongst other things, for supervising the actions of those who have been appointed under an Intervention or Guardianship Order to manage the affairs of an adult.

If an Intervention Order has been granted, the Intervener will have to regularly report to the OPG on their actions under the Order. The Intervener will need to keep careful records as he may be asked by the OPG to submit paperwork completed on behalf of the adult. Finally once all duties under the Order have been carried out the Intervener will have to advise the OPG of this and provide evidence to this effect.

Again the OPG will supervise all Guardians appointed under a Guardianship Order. As this order is of an ongoing nature the supervision is slightly more thorough. The OPG are responsible to ensure that all Guardians carry out all financial duties properly. The Guardian will have to submit an Inventory as soon as the Order has been registered with the OPG. The Inventory will detail all assets held by the adult. A management plan will have to be prepared explaining how he is going to administer the adult’s estate. He will also have to submit annual accounts. The OPG is only responsible for supervising the financial and property responsibilities of the Guardian. The Local Authority will be the supervisory body if the Guardian has any personal welfare responsibilities should be obtained. This Order is more suitable if the adult will have long term needs. The Guardianship Order will appoint a Guardian to look after the adult’s affairs on a continuous basis.

Both Orders can be granted to authorise somebody to be responsible for property and financial concerns, or matters relating to the personal welfare of the adult, or the Order can cover both areas of responsibility.

The next question to be answered is who should be appointed as the Guardian or Intervener. The person appointed needs to be an adult. A friend, relation or person acting in a professional capacity can be appointed.  How then do you apply for either an Intervention of Guardianship Order? An application has to be made to  the local Sheriff Court. Before you apply you must consult with the incapacitated adult to ensure his wishes, where possible, are taken into consideration. You may also have to consult with a relevant person. A relevant person could be the adult’s doctor or carer. The application to the court must be accompanied by two medical reports. In addition if the application includes authorisation for the personal welfare of the adult you must obtain a report from the Chief Social Worker stating the applicant is a suitable person. If the order relates to property or financial matters a report must be obtained from a person with sufficient knowledge. All these reports must be written within thirty days from the date the application is sent to the Court.

As you can see an application for either one of these orders is a long and complicated process. We would highly recommend that you obtain specialist legal advice.

If the Order is granted, it will have to be registered with the Office of the Public Guardian (OPG). The OPG is part of the Scottish Court Service. They are responsible, amongst other things, for supervising the actions of those who have been appointed under an Intervention or Guardianship Order to manage the affairs of an adult.

If an Intervention Order has been granted, the Intervener will have to regularly report to the OPG on their actions under the Order. The Intervener will need to keep careful records as he may be asked by the OPG to submit paperwork completed on behalf of the adult. Finally once all duties under the Order have been carried out the Intervener will have to advise the OPG of this and provide evidence to this effect.

Again the OPG will supervise all Guardians appointed under a Guardianship Order. As this order is of an ongoing nature the supervision is slightly more thorough. The OPG are responsible to ensure that all Guardians carry out all financial duties properly. The Guardian will have to submit an Inventory as soon as the Order has been registered with the OPG. The Inventory will detail all assets held by the adult. A management plan will have to be prepared explaining how he is going to administer the adult’s estate. He will also have to submit annual accounts. The OPG is only responsible for supervising the financial and property responsibilities of the Guardian. The Local Authority will be the supervisory body if the Guardian has any personal welfare responsibilities.

 

As previously stated the above provides a simple outline of what an Intervention/Guardianship Order is and how to apply for one. If you would like some more information on this subject or would indeed wish to apply for an Order please do not hesitate to contact us.