Guardianship – What happens if I can no longer look after my own affairs?

This is a question that faces many people, not least those of us who are getting on a bit. The simple truth of the matter is that if you don’t take steps to make sure that your interests are looked after before you can no longer make decisions for yourself, then someone can be appointed to make those decisions for you. This is usually your spouse or partner or a member of your family, a friend or a professional (for instance, a solicitor) but it can just as easily be someone from your local authority’s social work department. That person is called a Guardian and, once appointed, he or she can and will make decisions about your welfare or your financial affairs or both.

You need to know too that it’s not just “old age” that might require the appointment of a Guardian. It may well be necessary where:

  • You suffer from a serious illness
  • You have an accident (such as a car accident or accident at work where serious injuries are sustained), or
  • You develop a debilitating condition or illness. This might be Alzheimer’s or Parkinson’s disease or some other form of dementia.

The appointment of a Guardian is a process that’s dealt with through your local Sheriff Court. It can be time consuming and expensive to have a Guardian appointed. The person applying needs to provide two medical reports and other documentation to secure the appointment. Court and legal fees will also be incurred. You should also be aware that if someone objects to the proposed appointment, then those objections need to be considered by the Sheriff and this can slow things down and make the whole process even more expensive!

If the Sheriff is satisfied that a Guardianship order should be granted, a Guardian will be appointed to look after your affairs – and the Sheriff will usually also set out the extent of the Guardian’s powers.

You might think, “I have a spouse or a partner who can look after my interests”. Whilst this might be true in many cases, you cannot always rely on this to be the case. If, for instance, you need to have a Standing Order set up to pay for your care costs from a bank account that’s in your name alone, your partner or spouse will be unable to set that up for you, (unless they have some form of authority from you) and will be forced to take the expensive route of being appointed your Guardian.

There are also obligations on Guardians to keep detailed financial records and submit annual accounts to the Office of the Public Guardian in Scotland. If the guardianship relates to your welfare, your Guardian will be supervised by the local authority social work department. If the appointment is both financial and welfare, then you will need to accept that there will be a considerable amount of administration that your Guardian has to deal with.

Can all of this be avoided? Yes, it can. If you grant a Continuing and Welfare Power of Attorney, the person you appoint as your Attorney can deal with all of these issues for you without the need to resort to court.

We believe this is something that all of our clients should consider, irrespective of their age, because it might just help them avoid the expensive and time-consuming process of having a Guardian appointed to make decisions for them.

If you would like advice or simply wish to discuss your options – either for yourself or another family member – please call us on 01698 373365 or click here to email us.

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