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Unless you have been on an extended and rural staycation, you will likely be aware of the “#freeBritney” campaign and the regular updates on Britney Spears’ conservatorship. Where Britney has been actively trying to remove her father, who has a court-ordered agreement to control her personal and business affairs since 2008. He has recently stepped down from his role as a conservator.
Fortunately, for residents in Scotland, the control of an individual’s personal affairs by a third party without their consent is highly regulated and involves a meticulous and diligent process. So, sit back, put on your favourite Britney playlist and let me hit you (one more time) with the five stages of how a Legal Guardian is appointed and regulated in Scotland…
Stage 1: Capacity
Firstly, the “Adult” for whom a guardianship is being applied for must be deemed to be mentally incapable. This is defined as an inability through mental disorder or physical disability to act, or to make, communicate, understand or retain the memory of decisions.
As part of the process, the Adult must be assessed by two medical practitioners within 30 days of a guardianship application being lodged at Court. Generally, these assessments are performed by the Adult’s GP or hospital doctor, along with a listed psychiatrist.
In contrast, if an Adult is found to be mentally capable then guardianship is not possible, and they may of their own volition decide to appoint someone to control their personal affairs, then they can arrange for a Power of Attorney.
Stage 2: Application
A family member instructs a solicitor to prepare an application to the Sheriff Court. If the Adult does not have any suitable family then a professional Guardian (a solicitor or the Chief social worker of the Local Authority) can apply. The application contains the following:
- It asks the court to appoint one or more Guardians and any substitute Guardians and details information about each of them.
- It gives detailed information about the Adult’s background, medical conditions, family dynamics, current circumstances and if necessary financial information.
- It includes a list of specific welfare and/or financial powers that the proposed Guardian(s) would like to be granted by the court.
- It includes the medical reports by a GP and a psychiatrist confirming incapacity; a report by a mental health officer allocated by the Local Authority and if financial powers are required, often an independent report by a solicitor with knowledge of guardianships.
Stage 3: Court Process
Once the application is lodged at court, the Sheriff will order that a copy of the application be intimated to the Adult, their primary carer, other members of the Adult’s family, the Chief Social Work Officer of the Local Authority, the Mental Welfare Commission and the Office of the Public Guardian.
A hearing date will then be fixed where any interested party may provide their objections or views on the application. The Sheriff will then decide whether to grant the guardianship order whilst considering the following principles are adhered to:
- are of benefit to the adult;
- the least restrictive option available;
- consultation with the adult, their family and primary carer; and
encouragement for the Adult to do as much as they can.
This is set out by Section 1 of the Adults with Incapacity (Scotland) Act 2000.
In guardianships involving financial powers, the Sheriff may also require the guardian to put in place a “bond of caution”, which is a form of insurance cover to be taken out to protect the Adult’s assets.
Stage 4: Regulation of Guardians
Once a Sheriff has granted a Guardianship Order, the Office of the Public Guardian will regulate the Guardians stringently. For more information in relation to this click here.
Stage 5: Renewal
Guardianship Orders are granted for a fixed period of time, usually 3 or 5 years. It is very unusual nowadays for any new guardianship to be granted for an indefinite period, as it is considered to be a risk to an Adult’s Human Rights if they are made subject to a legal order that is not subject to a periodic review by the Court. It is, therefore, necessary for the guardian to apply for their appointment to be renewed prior to the expiry of the Guardianship Order. This process allows the whole arrangement to be re-assessed every few years to see if it is still suitable in light of the Adult’s changing needs and if the guardians remain appropriate people to hold office. This can also be used as a useful opportunity to amend the guardianship by adding new powers or removing unused ones, or by adding in new guardians in order to e.g. involve the next generation of the family to help look after the Adult in the future.
Whilst it seems that the battle over Britney’s conservatorship is far from over, residents of Scotland can be assured that the Guardianship system in Scotland very much focussed on what benefits the Adult; the application system is robust and guardians are subject to vetting before they are appointed, as well as an ongoing review once they are in office.
If you wish to discuss Guardianship Orders in more detail, please get in touch with Blackadders’ Private Client Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Heather Maltman, Trainee Solicitor
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