Mental Health And Guardianship Orders

As the population continues to live to a much riper age, we are seeing more and more families dealing with very distressing issues arising as a consequence of elderly family members being diagnosed with illnesses such as Dementia and Alzheimer’s Disease. The Adults with Incapacity (Scotland) Act 2000 was introduced to provide a legal framework in which authority could be provided to a relevant person to allow them to make decisions on issues relating to both welfare and finances when an individual has been assessed by a doctor as lacking capacity.  Nowadays, it is commonly the case that when an individual is drafting their Will they attend to the preparation of a Power of Attorney at the same time.  This document allows them to nominate an individual whom they wish to make decisions for them should they find themselves in a situation in which they are no longer capable of making decisions themselves or, in relation to finances, would prefer not to.

An application for a Guardianship Order becomes necessary when an individual is assessed as lacking capacity as a consequence of suffering from a diagnosed mental disorder and they do not have a Power of Attorney in existence.  To safeguard the rights of that individual at the centre of the decision making process, a legal intervention is necessary to ensure that all decisions made on behalf of the adult are in the adult’s best interest and follow the underlying principle of minimum intervention. 

We regularly provide advice and guidance to families in this area.  Very often it is families who are facing the difficult situation in which an elderly relative requires to be removed from their home so that long term care can be provided within a residential care home setting.  Another common scenario where a Guardianship Order may be necessary is when a child diagnosed with a learning disability or other mental illness is about to turn 16 and the parents (who have provided principal care to the child during their lifetime) then require this legal authority to continue making decisions and providing the necessary ongoing care to that individual. 

The Local Authority will always play some role in any Guardianship Order application.  This is due to the fact that a Mental Health Officer employed by the Local Authority requires to prepare a report (alongside two medical reports) to support any Guardianship Order being made.  Furthermore, if someone is assessed as lacking capacity and there is no suitable person (whether it be a family or friend) who is able or prepared to take on the role of Welfare Guardian, the Local Authority have an obligation to do so. 

Having sixteen years’ experience in this field we can provide expert assistance and guidance to individuals who find themselves thrown into a situation like this.  We are considerate of the fact that the individual may also be dealing with the distressing news of a family member’s recent diagnosis of an illness such as dementia. 

In relation to costs involved in making a Guardianship application, the Scottish Legal Aid Board do provide funding and we can also advise clients on that and alleviate any worry they may have in relation to expensive legal fees. 


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