If you or a loved one is facing a situation where a Guardianship Order may be necessary in Scotland, you might be wondering about the associated costs and whether legal aid is available. In this blog post, we'll delve into the details of obtaining a Guardianship Order and shed light on the financial aspects involved.
Civil Legal Aid for Guardianship Orders
First and foremost, it's essential to know that the Scottish Legal Aid Board (SLAB) plays a pivotal role in providing financial assistance. The good news is that SLAB assesses the provision of legal aid funding for Welfare Guardianship matters based on the merits of the proposed application only. This means that the financial circumstances of the adult in question or any proposed guardians are not taken into consideration when determining eligibility for legal aid.
In simpler terms, you do not need to worry about the costs of applying to court for a Guardianship Order if your case falls under welfare matters. This approach is designed to ensure that individuals who need guardianship to protect their interests can access the legal support they require without being burdened by financial concerns.
Initial Costs and Advice and Assistance Legal Aid
While the overall costs of obtaining a Guardianship Order are covered through legal aid for welfare matters, there are still some initial expenses involved in starting an application. These initial costs can include medical assessment costs and legal fees for consultation and paperwork.
However, the good news is that you can claim legal aid for these initial costs through SLAB's Legal Advice and Assistance scheme. The granting of Legal Aid for these initial expenses will depend on an assessment of the financial circumstances of the adult who has lost capacity. It's important to note that this assessment will not consider the financial situation of the person who is aiming to become a guardian. The primary focus is on ensuring that the vulnerable adult's interests are protected.
Assessment of Finances
If you are unsure about whether you qualify for legal aid for the initial costs of a Guardianship Order, it's advisable to reach out for guidance. You can contact us for an informal discussion and an assessment of the finances involved in your specific case. This assessment will help determine whether legal advice and assistance is available to you. If advice and assistance is not available we offer a competitive fixed fee in relation to these initial costs.
In summary, obtaining a Welfare Guardianship Order in Scotland comes with some initial costs, but legal aid is generally available to cover these expenses. The financial circumstances of the adult in need of guardianship are the primary factor considered when granting legal aid, so you can pursue the necessary legal steps without worrying about your own financial situation.
If you have questions or need assistance, don't hesitate to contact us for an informal, no obligation discussion and a thorough assessment of your circumstances. Your aim should be to ensure the well-being and protection of the adult in need, and legal aid is there to support you in this important endeavor.
Guidance on Guardianship Orders and Powers of Attorney
Power of Attorney
A Power of Attorney is prepared by you and allows you to plan how you would like another person to act on your behalf in the future, should you become incapable of making your own decisions. You can nominate a person as your Attorney to allow them to deal with money and property, to make decisions regarding your health or personal welfare matters or both. We can provide advice and guidance on what should be included in your Power of Attorney and thereafter prepare the written documentation. We also arrange for the Power of Attorney to be registered with the Office of Public Guardian in Scotland.
Legal Aid is often available for preparation of a Power of Attorney. We are happy to provide a no obligation service to assess your eligibility for free legal assistance. We also offer a fixed private fee for occasions when Legal Aid is not available.
Guardianship Orders
A guardianship order is granted by the court and provides authority to a person to make decisions on behalf of another where they are considered to be an ‘adult with incapacity’. An adult with incapacity is a person over the age of 16 who is not able to look after their own affairs due to mental disorder or inability to communicate because of physical disability. The law states that an adult will be deemed incapable to manage their affairs if they are incapable of acting on or making decisions, communicating decisions, understanding decisions or retaining memory of decisions.
There are three types of guardianship order:-
Legal aid is often available in respect of an application for guardianship. Eligibility for legal aid is based on the adult's income and assets and not the prospective guardian's. Civil Legal Aid is available where welfare powers are sought without the need for any financial assessment.
A guardianship order must have some benefit to the adult and be the least restrictive option available. For example, there are alternative methods available to manage an incapable adults finances including DWP Appointeeship and Access to Funds. Details of these can be found on the website of the Office of the Public Guardian Scotland (see link on our website).
We are happy to offer informal advice as to whether a guardianship order will help the adult in question and that it is appropriate for their circumstances. We can also carry out a no obligation assessment on eligibility for legal aid.
Intervention order
An intervention order is granted by the court and gives authority to a person to perform a one-off action on behalf of an adult with incapacity. This could include signing legal documents, including tenancy agreements, or selling the adults house. An intervention order lasts until the action is complete. If powers are required on an ongoing basis then a guardianship order may be more appropriate.
Legal aid is often available to apply for an intervention order.
Guidance on Mental Health Law
Legal powers can be used where someone is receiving treatment for a mental illness or disorder but do not agree with that treatment. Decisions can be made on their behalf as to when and how treatment is delivered, Aand when they can be kept in hospital against their will. There are a number of safeguards in place to ensure that where legal powers are used, an individual’s rights are protected.
Emergency Detention
Where a doctor recommends that someone’s condition should be assessed they can be held in hospital for up to 72 hours (3 days). During this time, they should not be given any treatment unless they agree with it, unless the treatment is considered to be required urgently. There is no right to appeal against emergency detention.
Short Term Detention
When further time is required for assessing and treating a suspected mental illness or disorder, a person can be detained in hospital for up to 28 days (4 weeks). A legal order known as a Short Term Detention Certificate (STDC) is issued if a Psychiatrist and a Mental Health Officer both agree that a patient meets certain legal criteria.
A STDC can be challenged by a patient or their Named Person or next of kin in certain circumstances. This is done by way of an appeal to the Mental Health Tribunal for Scotland. An independent Tribunal will be convened and panel of three members, consisting of a legal member (lawyer), medical member (psychiatrist) and general member, will hear evidence and decide whether the detention should continue. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Order
Compulsory Treatment Orders impose measures to either detain a patient in hospital for the purpose of receiving treatment or to compel treatment to be received in the community.
An application for a Compulsory Treatment Order is made by a Mental Health Officer at the request of a treating psychiatrist. The Mental Health Officer will prepare a report and obtain two medical reports. A Mental Health Tribunal will be convened to hear the application. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Orders can last up to six months and must be revoked when a psychiatrist comes to a view that the individual no longer meets certain legal criteria. If the Order is still in place after three months a patient or their Named Person can appeal to the Mental Health Tribunal and request that the Order be reviewed.
Court Imposed Orders
Compulsion Orders are imposed by a Sheriff at Court following a criminal case. These are initially made for a period of six months and a Tribunal will be fixed thereafter to review it. A Patient or their Named Person can oppose the extension of the Order and is entitled to legal representation.
Compulsion Order and Restriction Orders are granted by the court for an indefinite period of time. These will be reviewed annually by a patient’s psychiatrist and the Scottish Government. A Patient and their Named Person can also appeal against the orders.
Legal aid is available irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Links to other relevant sites
Office of the Public Guardian Scotland - https://www.publicguardian-scotland.gov.uk/
Self Directed Support Scotland - https://www.sdsscotland.org.uk/
Mental Welfare Commission for Scotland - https://www.mwcscot.org.uk/
Mental Health Tribunal for Scotland – https://www.mhtscotland.gov.uk/mhts/Home/Welcome_to_the_Mental_Health_Tribunal
Where we Operate
Our main areas of operation are Glasgow City, Glasgow Southside, North Glasgow, Paisley, Hamilton, East Kilbride, Coatbridge, Uddingston, Motherwell, Wishaw, Cumbernauld, Dumbarton, Stirling and Falkirk. If you are outwith any of these areas please do not hesitate to contact us to check our availability to travel to you.