Guardianship has two distinct meanings in Family Law.
The first definition of guardianship refers to the appointment of a guardian by the court following an application made under the Adults with Incapacity (Scotland) Act 2000. This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone who is 16 years or over is considered an adult. When a child who does not have mental capacity turns 16, the child’s parents will not be able to make decisions on their behalf, unless the parents have a Guardianship Order.
The second meaning is in relation to a person who is a legal guardian of a child. This can also be referred to as the child’s legal representative. You may want to appoint a guardian for your child to ensure your child is looked after if both you and their other parent die.
A guardian, also known as a child’s legal representative, has a wide range of powers on behalf of the child in relation to the administration of the child’s property. A guardian or legal representative also usually has the right to the residence of the child. Residence is generally taken to include the right of a person to have the child living with them and/or the ability to control the child’s place of residence, education and upbringing.
A Guardianship Order is a court appointment that authorises a person to act and make decisions on behalf of an adult with incapacity. This includes decisions about:
- Medical treatment
- Care arrangements
- Financial matters
A Guardianship Order is suitable when decisions need to be taken in relation to the adult on an ongoing basis. It must be appropriate and beneficial to the adult.
When a child who does not have mental capacity turns 16, the child’s parents will not be able to make decisions on their behalf as the child is now considered an adult. In order to make these decisions in respect of the child now they are an adult, the parents will need a Guardianship Order.
Approximately three months before your child’s 16th birthday, you should take legal advice about a Guardianship Order. This should give enough time for an application to be drafted and lodged at court so that the order is granted in advance of your child’s birthday and the powers take effect on the date of their 16th birthday.
The application will include a list of the powers that you need to allow you to look after their affairs, such as to deal with the adult’s property and/or financial affairs, and/or to make decisions about their personal welfare. Depending on the particular facts and circumstances, the Sheriff will decide how long the Guardianship Order should last for. Typically, orders are granted for a period of three years. However, they can be granted for shorter or longer period depending on the circumstances.
You can find more information on our Guardianship services for adults with incapacity in our Private Client section.
In the event of your death:
If the other parent is living and they hold parental responsibilities and rights then the care of the child may pass to them especially if no guardian has been appointed.
If the other parent is living and they have parental rights and responsibilities but you have appointed a guardian who accepts office, both the other parent and the guardian will share the rights and responsibilities and the future care of the child will fall to be determined either by agreement or by the court in the absence of agreement.
If there is no other parent with parental responsibilities and rights, but you have appointed a guardian, the guardian will be responsible for the child if they accept the appointment. If there is no other parent with responsibilities and rights and no guardian appointed, the care of the child will fall to the local authority in the first instance
If you want to appoint a guardian for your child for this situation, you can set out your intentions in your Will or draw up a specific agreement. A Solicitor will be able to help you with either of these.
We can help you with both types of guardianship. If you are looking to apply for guardianship for an adult with incapacity, we can handle the whole process for you, from drafting the application and arranging for the relevant reports through to lodging the application, and then helping you deal with the ongoing guardianship compliance.
If you want to appoint a guardian to look after your child if something happens to you or to apply for guardianship of a child, we can advise you on the options available to you, draft any necessary legal documentation and guide you through the process.
At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.
Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.
Call us on 03330 430 150 for a chat or contact us to book an appointment.
We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.
Legal Aid may be available for a Guardianship Order where welfare powers are being sought for the adult. In other cases we do not offer Legal Aid for this service.