In Mental Health Awareness Week, we have been considering what support our team can provide to those worried about capacity either now or in the future. We have considered already how you might prepare for possible future incapacity, as a result of mental health problems or otherwise, by ensuring that a Power of Attorney is in place.
Powers of Attorney can only be put in place by an individual while they still have capacity to provide instructions about who they would like to look after their affairs, in the event that they lose capacity in the future. But what happens if a person loses capacity before a Power of Attorney is in place?
In this situation, the window of opportunity to put a Power of Attorney in place has closed and with no one with authority to act on their behalf a more formal process must be entered into via a guardianship application to have someone appointed (known as a guardian). A guardianship may also be needed in cases where an existing Power of Attorney does not provide all of the powers considered necessary.
How is a guardian appointed?
For a guardian to be appointed, an application for appointment must be made to the appropriate Sheriff Court by anyone claiming to have an interest in the property, financial affairs or welfare of the adult who has lost capacity. Generally, this will mean that a family member or friend is applying to be appointed, but it may be that a solicitor or other professional such as a social worker might apply instead. Joint guardians may be appointed and, similarly to Powers of Attorney, there are two types of guardianship (welfare and financial) and applications can be made for both or either type of guardianship as necessary.
The application process requires that various reports are submitted to the court. Welfare guardianship applications should be accompanied by two medical reports and a report from a Mental Health Officer (MHO), who should comment on whether it is appropriate for the Guardianship Order to be granted. Financial guardianship applications must include the two medical reports along with a financial report regarding the suitability of the person seeking appointment.
Once the application has been made, a date for a private hearing will be set, during which the application will be discussed and considered by the Sheriff who will then ultimately grant the application if considered appropriate.
Guardianship appointments must of course be in the adult's best interest, and potential guardians are encouraged to consider the least restrictive measures that would benefit the adult. It is therefore becoming more unlikely for indefinite appointments to be made since the adult's condition may improve, resulting in less/different powers being required, or to allow for the adult later regaining capacity with the guardianship no longer being needed.
Guardianship appointments are often therefore only granted for a set period of time, a few years perhaps, requiring them to re-apply taking account of any change in circumstance at that point. This is considered beneficial in circumstances where the loss of capacity is as a result of mental health issues, which may cause only temporary incapacity.
It should be noted that the current laws surrounding guardianship in Scotland have been subject to review for a number of years and it is likely that the practice will change.
Get in touch
Harper Macleod's Private Client team are here to help with legal issues surrounding Mental Health problems and lack of capacity. Our experienced solicitors will be happy to discuss all of the available options to help you make suitable arrangements. We have solicitors and offices across the country and are ready to help.
Elgin: 01343 542623