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  • Guardianship Orders

Guardianship Orders

If a family member no longer has capacity to make their own decisions and they have not previously granted a Power of Attorney, an application to the court can be made. for a Guardianship Order. Such an order allows guardian(s) to take control of the financial affairs and/or welfare of the incapacitated Adult.

A person can be incapacitated in a number of ways. The majority of orders are granted due to the adult suffering from a form of dementia, learning disability or brain injury.

A Guardianship Order can confer welfare powers, continuing powers or a combination of both. 

The applicant can be one person, two, or more.  The applicant requires to show that they will act in the best interests of the Adult, in accordance with their known wishes, and, to make decisions just as the Adult would have, had the Adult been able. Anyone with an interest can make an application.  

You can apply to the court to become a child’s Guardian when they turn 16.  The application can be made three months before their 16th birthday.  The Guardianship will then take effect on their 16th birthday.  

A Guardianship application requires to be supported by three professional opinions.  Two will be from medical professionals confirming that the Adult lacks capacity.  This will normally be a GP and psychiatrist. The third opinion will be from a mental health officer.  A mental health officer is a social worker from the local authority.  The mental health officer will speak with all of those involved in the Adult’s care, including other family members.  They will provide a recommendation to the court as to the suitability of the Guardian and also whether the orders sought are in the Adult’s best interests.  The court will only grant powers that are necessarily required to manage the adult’s care and finances.

Guardianship Orders are normally granted for 3 to 5 years.  In some circumstances, depending on the age of the Adult, they can be granted for 10 years. If, upon its expiry, you will continue to need the Guardianship Order, it is important that you apply to the court fro renewal, before the order expires.  This will allow you to continue to act as Guardian while the renewal is being determined.  

Financial guardians will have administrative duties to complete.  These include preparing a management plan and submitting annual accounts to the Office of the Public Guardian.  You may also require to lodge ‘caution’ with the Office of the Public Guardian depending on the assets of the Adult.  Caution is a type of insurance policy which protects the Adult’s estate against mismanagement.

If you are applying for a welfare or combined guardianship order you are able to make an application for civil legal aid in respect of the required application to court, regardless of your income.   Legal aid may also be available for the work carried out prior to the grant of civil legal aid.  This wil be dependent on the income and savings of the Adult.

We have a wealth of experince in applying for Guardianship orders, and renewals of those orders. Let our expert team guide you through this difficult time.


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