Blog: Changes to guardianship in Scotland

Laura McDowall

Laura McDowall looks ahead to proposed reforms to the rules of guardianship in Scotland.

As private client practitioners, we often provide advice in matters where an adult lacks the capacity to make decisions relating to their personal affairs. This could be due to many reasons, including age-related illnesses such as Alzheimer’s; autism in a young adult; or a brain injury suffered by a person of any age. When an adult (any person over the age of 16 in Scotland) lacks the capacity to make such decisions, and they do not already have a valid power of attorney in place, a person is required to act on their behalf. In most cases, an application to have a guardian appointed is necessary.

The current legislation in Scotland provides for only one level of guardianship, which cannot be adapted to meet the different needs of individual adults. Although the powers sought under a guardianship can be tailored, the process and supervision cannot, and are viewed by many as overly onerous – particularly for simple situations.

For every application, the following are required before a guardianship application can be submitted to court: two medical reports, including one by an approved mental health doctor; a report by a mental health officer (MHO) covering the appropriateness of the proposed order and the suitability of the person nominated as welfare guardian; and, in most geographical areas, a report by a solicitor, covering the suitability of the proposed financial guardian. These reports should all be dated within 30 days of the first reporter’s assessment.

Once the guardianship order has been granted, the Office of the Public Guardian (OPG) supervises a financial guardian and imposes duties, including the preparation of an inventory, management plan and annual accounts. A welfare guardian is supervised by the local authority and is also required to keep full records. Presently, all guardians have the same responsibilities.

The future

The OPG proposed the introduction of ‘graded guardianship’ in 2011. It is envisaged that there will be three levels of guardianship:

  • Level 1: the simplest, with a set application to the OPG, limited prescribed powers and a maximum duration of three years;
  • Level 2: an administrative application to court, without a hearing and with a maximum duration of five years; and
  • Level 3: the most complex, with a full court hearing, but still restricted to a maximum of five years.

For all applications, a social work report would still be needed, but only one medical report and an OPG declaration for suitability of financial guardians.

The Scottish government has also suggested that, rather than a court, a Mental Health Tribunal – or an alternative tribunal system – could be a better forum for guardianship cases.

It is expected that almost half of all applications would fall under Level 1, allowing simpler applications to be granted swiftly, and alleviating court pressure so that Level 2 and Level 3 orders could be dealt with more efficiently. It is also anticipated that delays in obtaining medical reports will be reduced, as the specialist reports will only be required for Level 2 and Level 3 applications. In addition, the pressure on MHOs would reduce by Level 1 reports being completed by care managers and the OPG commenting on the suitability of all financial guardians.

The Scottish government has also suggested that the level of supervision be independently graded in each case, enabling a Level 1 guardianship to have Level 3 supervision. The OPG and care manager/MHO would be expected to suggest the level of supervision in their report.

There is concern that there has been a trend for guardianship orders with extensive powers to be granted for indefinite periods to avoid the long process, and expense, of returning to court for additional powers and renewal of orders. The recent concerns around the least restrictive principle and human rights issues have reduced this, and the suggested maximum durations and limited powers in graded guardianships would eliminate it.

The potential amendments would benefit both adults and guardians. The number of guardianships in Scotland continues to increase, and will inevitably compound the delays being faced. The current statutory regime is inflexible and does not take into account the wide spectrum of needs of incapable adults. The introduction of a greater choice of guardianship will allow this to be addressed. The Scottish government consultation on reform of the Adults with Incapacity (Scotland) Act 2000 was published on 31 January 2018 and is open until 30 April 2018. Everyone involved with the legislation can have their say.

  • Laura McDowell is a partner at Blackadders. This article first appeared in the STEP Journal.