Guardianship Applications for Adults with Incapacity

Step 1: You decide whether the Guardianship Order should cover welfare or financial powers or both. A welfare appointment will allow you to make ongoing decisions about where the adult should live and what type of care and support they should receive. If a financial appointment is made, you will also be able to deal with all financial arrangements such as applying for benefits, paying bills and dealing with property and bank accounts.

Step 2: You speak with one of our experienced Solicitors, who will discuss with you the extent to which financial assistance might be available from the Scottish Legal Aid Board and outline costs payable where funding cannot be obtained.

Step 3: We obtain full details of your case and, if required, complete the paperwork needed for you to apply for Legal Advice & Assistance and/or Legal Aid.  We then submit your application to the Scottish Legal Aid Board. 

Step 4: Your Solicitor contacts the Local Authority for the area where the incapable adult lives. The Local Authority allocates a Mental Health Officer (MHO) who meets with you and the adult, along with any other relevant individuals. The MHO independently assesses your application for a Guardianship Order and produces a comprehensive report in which they outline whether or not they are supportive of your application. This stage can take some time as there is often a long waiting list for the appointment of a MHO.

Step 5: Once a MHO has been allocated, you also need to obtain two medical reports to confirm the nature and likely duration of the adult’s incapacity. Your Solicitor arranges this for you. Normally one of these reports comes from the adult’s GP and the other from an independent psychiatrist. The doctors have to examine and assess the adult to complete their reports.

Step 6:  Once all of the reports have been prepared, your Solicitor takes the case to your local Sheriff Court. This includes preparing a comprehensive set of papers for consideration by the Sheriff.  The application and associated papers have to be sent to the nearest family members of the adult, and also to the Office of the Public Guardian, the Mental Welfare Commission and the Local Authority. We deal with this for you and attend any Court hearing on your behalf. Opposition to guardianship applications is very rare and, in most cases, the Sheriff generally grants the Guardianship Order for three years but sometimes for a longer period.

Step 7: The Court provides us with the Guardianship Order, if granted. It is also sent to the Office of the Public Guardian, who then provides you with a Certificate confirming the powers that you hold in relation to the adult and which is your legal authority to make decisions on their behalf. Depending upon the size of the adult’s estate you may be required by the Court to put insurance (known as caution) in place and to prepare a management plan.

Different processes and procedures apply to renewing or varying existing Guardianship Orders, but we can assist with that too as required.

Obtaining a Guardianship Order can be complicated and your case might take a number of months to conclude, sometimes six months or more. 

Legal Aid: If you are applying for a Guardianship Order which includes welfare powers, the Scottish Legal Aid Board will grant Legal Aid to cover all of the costs of your case from the date of a Legal Aid Certificate being issued. 

If you are only applying for financial powers, Legal Aid is means tested.

Cost of applying for Legal Aid: In all cases where Legal Aid is being applied for, we have to undertake initial work to prepare and submit the application. This includes taking details about your case, arranging completion of the application forms and preparing ancillary paperwork. The costs of this initial work might be covered by the Legal Advice & Assistance scheme operated by the Scottish Legal Aid Board. In all cases, the availability of Legal Advice & Assistance is means tested. 

If Legal Advice & Assistance is not available, we charge a fixed fee for preparing and submitting the Legal Aid application:

• For putting Legal Aid in place for one person seeking a Guardianship Order, our fee is £500-800 plus VAT depending upon complexity.
• For putting Legal Aid in place for more than one person seeking appointment, our additional fees are £150-£200 plus VAT per person.

Hourly rates: If you are not eligible for Legal Aid, we will charge you based on our usual hourly rates. We will discuss with you at the start if this is the case and will advise you on costs, and keep you informed on any changes to costs throughout the process. Outlays will be payable in addition to this.

The hourly rates (excluding VAT) are:

Additional third-party costs: Where fees are payable privately then generally these can be recovered from the adult’s assets with the permission of the Court. We always ensure that the work is carried out by a team member at a level appropriate for the complexity of the matter.

If Legal Aid is granted, all of the costs of your case are normally covered in full from the date the Legal Aid Certificate is issued.

If you are applying for financial powers only without the benefit of Legal Aid, third-party costs payable are:

• Costs of two medical reports
• Court dues for lodging the application at the Sheriff Court
• Costs of a report from a “person of sufficient knowledge”
• Search and registration dues where heritable property is involved

Our experienced Solicitors will guide you through the process of applying for a Guardianship Order from start to finish, including advice on possible financial assistance and applying for it.  We will take care of all of the legal work required throughout the process, attend any hearings on your behalf and work with you to get the Order in place as soon as possible.