Guardianship and Powers of Attorney

Guardianship and Powers of Attorney

Welfare and Financial Guardianship 
We act in welfare and financial guardianships in Kirkcaldy and throughout Fife. We provide a sensitive and professional approach and always look to explore whether your case can be progressed by Legal Aid.

Andrew McLaughlin is appointed as Curator ad Litem to the Mental Health Tribunal for Scotland demonstrating Andrew's commitment to the specialist area of incapacity law.

More information on guardianship can be obtained from the official website of the Office of the Public Guardian:

www.publicguardian-scotland.gov.uk

Frequently Asked Questions

Is Legal Aid Available in Every Case?

Yes, and it is available for everyone regardless of how much money they have in the bank. In our experience, many solicitors do not advertise this. We always look to obtain Legal Aid funding to allow family members and carers to obtain welfare and financial guardianship applications. There may be a small cost in applying for Civil Legal Aid itself.

What is involved in the Guardianship Process?

We are experts in sorting out guardianships and this area of law has always been one of the backbones of our practice. Once we obtain Legal Aid for you we will ingather the necessary reports which we need. We need to get two reports from doctors which confirm that the "Adult" has an incapacity and that this is likely to be lifelong. We also need to get a report from a Mental Health Officer. Mental Health Officers are employed by the local authority and provide a report on your suitability as being appointed as guardian.

Once we have these reports we draft up the court papers and send it all to Court. We then get the papers back from Court with the date of the hearing. Before then we have to serve the Court papers on various government bodies and on interested parties in the Adult's life. Provided no one objects then we have a great record of having the guardianship order granted at the first hearing without any need for further delays. If there are objections we have the skills and experience required to successfully argue your case before the Sheriff.

Does your situation require a Welfare or Financial Guardianship?

Typically, our clients either have elderly relatives who have a diagnosis of dementia or other cognitive impairment, or children with autism or learning disabilities who are approaching 16. In each case we look to ensure that the Guardian will have all the legal powers that they need to look after their loved one's affairs. Once your child becomes 16 you are not automatically able to make decisions for them and so guardianships are often required to ensure that parents of those with learning disabilities are able to have the legal authorisation to act on their behalf.

How is Guardianship Different from Powers of Attorney?

The main difference between a Guardianship order and a Power of Attorney is that a Power of Attorney is a document granted when the person is of sound mind. The document states how they would like their affairs managed should that lose the capacity to make those decisions for themselves. A guardianship application is required when the person has already lost the capacity to make decisions and so is unable to grant a Power of Attorney.


Power of Attorney 
A Power of Attorney allows you to plan what another person will be able to do on your behalf in the event that you lose capacity at some point in the future. It is a written document which includes a certificate signed by a solicitor or an advocate.

Anyone over the age of 16 years who is assessed as having capacity can make a Power of Attorney. As part of the process we will interview you to confirm that you understand the nature and impact of the Power of Attorney proposed. Your solicitor will then complete a Certificate of Capacity which is required in order to have your Power of Attorney registered with the Office of the Public Guardian.

There are three types of Power of Attorney:

1. Continuing Power of Attorney - this gives the nominated person powers to deal money and/or property
2. Welfare Power of Attorney - this gives the nominated person powers to take decisions relating to welfare and personal care
3. Combined Power of Attorney - this gives the nominated person both financial and welfare powers

We offer a straight-forward and clear fixed fee of £350 + VAT covering all the work from the initial meeting to registration of your Power of Attorney. 

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