Parents generally have the legal right to make decisions on behalf of their children. But when that child turns 16 they are effectively deemed an adult and with that comes the responsibility to make decisions independently. However sometimes this is not possible, and someone else needs to step in to take care of an adult.
A Guardianship Order is a legal document that allows someone to make ongoing decisions on behalf of an adult with incapacity – i.e. a person over the age of 16 who is not able to look after their own affairs. This may be necessary if the person cannot take care of themselves due to mental illness, learning difficulties, disease or mental incapacity and they need someone to help take decisions for them on an ongoing basis.
When an adult is unable to care for themselves they may need someone to step in to deal with bank accounts, pay bills on their behalf or make welfare decisions for them. The ‘candidate’ could be a family member, a carer or even a professional person such as a solicitor or accountant. If you are responsible for a child who you believe will need a Guardianship, remember that you can apply for a Guardianship Order up to three months before their 16th birthday, meaning that the Guardianship Order will take effect on the date of their birthday.
There are a variety of different types of decisions and powers that can be granted via a Guardianship, including:
- Financial – powers in relation to the finances and property belonging to the adult e.g. dealing with bank accounts, paying bills and managing any claims to benefits that the person is entitled to.
- Welfare – powers in relation to making welfare decisions for the adult e.g. consent to medical treatment on their behalf, or making day-to-day decisions relative to their care.
- Combinations of financial / property and welfare – often a guardianship will cover both areas but when determining what powers should be granted, the Courts will consider the least intervention required to benefit the adult.
A Guardianship will give you the necessary ongoing legal authority to act and make decisions about the future healthcare and financial affairs of your child or adult that you are responsible for, and usually, powers are granted for a three-year period. Without a Guardianship in place you would have to apply to the Courts for an intervention order to allow for a one-off specific action to be completed, which can be a costly and lengthy process.
At Ness Gallagher we can take you through the court application and help ensure that you have a plan in place for your child’s future and the necessary arrangements made for adults with incapacity, should you need it.