Guardianship and Interventions vs Power of Attorney

If you have ‘mental capacity’, you have the ability and the power to make your own decisions about things like where you live, how you spend your money and what medical care you receive. With capacity, you can create a ‘power of attorney’, to make somebody you trust your ‘attorney’ to make those decisions for you if and when you lose your own capacity through mental ill health or degeneration.

Incapacity can creep up on us, or it can affect us suddenly (through accident or illness for instance) and in either of these circumstances it can be easy to leave it too late to put proper planning in place in the form of a Power of Attorney. If there is no Power of Attorney in place when a person loses their mental capacity, a Guardianship Order or an Intervention Order might be necessary. 

Guardianship Orders vs Intervention Orders

Under the Adults with Incapacity (Scotland) Act 2000, a Guardianship Order or an Intervention Order is made by the court, rather than by the individual who has lost capacity. A Guardianship Order appoints a Guardian, who will make long-term decisions about the finances and property, and/or health and wellbeing of the person who has lost capacity. An Intervention Order allows the Guardian to make a specific decision about a particular issue.

The aim of Power of Attorney, Guardianship Order or Intervention Order is the same: all are designed to allow someone trustworthy to make decisions that are in the best interests of someone who can no longer make those decisions for themselves. Those decisions can be to do with their money or house, their health or medical treatment, or all of these issues.

What can a Guardian do?

The Guardianship Order will specify what area(s) of a person’s life the Guardian can make decisions about. There are two types of guardianship powers: financial and welfare.

Financial Guardianship Powers

A guardian with powers to make decisions about a person’s finances and property can:

  • Pay bills (on behalf of the person who lacks capacity)
  • Deal with the person’s bank and with the Inland Revenue
  • Borrow money on their behalf
  • Sell or buy property for the person without capacity

Welfare Guardianship Powers

A guardian with powers to make decisions about a person’s health and wellbeing can:

  • Decide what medical treatment they can receive and give consent for some treatments
  • Decide where they live (e.g. whether they should go into a residential care home) and with whom

Applying for a Guardianship Order

If a person has lost the capacity to make their own decisions, it is usually a friend or family member who will apply to the court for a Guardianship Order. However, a professional (such as a solicitor) can make the application, as can the Local Authority. 

Usually, only one person is appointed as guardian, though more than one could be made joint guardians (and must work closely and in agreement with each other to do so). Commonly, a relative might decide to apply for Guardianship powers to make decisions about their loved one’s health or living arrangements, but might ask a Solicitor to be the Guardian of the financial affairs.

What will the Court want to know?

When you apply for a Guardianship Order, your application form will tell the Court what powers you are seeking and why. We can help you to fill in this form if you prefer, or you can lodge it yourself. There is a court fee payable: you can take this money from your loved one’s estate after the Order has been made.

The Court will need three reports: two medical reports that assess your loved one’s capacity and a ‘suitability’ report, which will assess how suitable you are to act as a Guardian with the powers you are seeking (you will be interviewed for this report). 

The Sheriff Clerk will notify anyone who needs to be told about your application – these may be family members or other people who might have an interest in the outcome of the court’s decision – to give them the opportunity to object if they wish. This is a safeguarding measure to prevent unscrupulous people applying for Guardianship Orders when they are not appropriate.

The Court will hold a hearing that you can attend as well as others (including the person who lacks capacity if appropriate). The Sheriff will then make a decision about whether or not to grant the Order.

How Drummond Miller can help

Drummond Miller will guide you through the process, from applying for a Guardianship or Intervention Order to helping you to put that Order into effect. Whatever stage you need assistance with, we can support you to get the right order in the right terms for the benefit of your loved one.

Contact Us

Get in touch with our Private Client expert, Charles to discuss your requirements.

Meet with Charles