Guardianships Applications (Incapacity)


Where creation of a Power of Attorney is not possible or is inappropriate, a suitable person or persons, who may be a family member or others, apply to the Sheriff Court to be appointed as Guardian(s). This is a complex and very detailed court process involving drafting the necessary legal documentation and obtaining the required medical reports in support of this.  Such Applications have to be prepared and presented to the Court within a specified timescale and there are often other factors to take into account such as obtaining a “Bond of Caution” which effectively is insurance to protect the heritable property and finances of the incapacitated individual if you are seeking a power to deal with their finances.

Legal Aid is available for most Guardianship applications which involve “welfare powers” either alone or combined with property/financial powers and as such the cost of these applications will be covered, in most cases, by the Scottish Legal Aid Board.  The cost of the main application is not means tested and therefore all our firm’s fees, medical reports, court fees etc will usually be covered under the legal aid certificate.  Where you are liable to pay any additional outlays such as having to obtain the Bond of Caution or for any pre-legal aid work, this can often be worked into the Guardianship Order so that you are able to reclaim any expenses that you have expended on the Adult’s behalf as part of the Guardianship Application process once the Order is granted.
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A form of legal aid known as “Advice and Assistance” may be available for pre-legal aid work (your initial meeting with us, applying for your legal aid certificate and obtaining corroboration from a third party).  This element of legal aid is means tested on the Adult’s income and capital and we will advise you if you will be eligible to apply for this. You will require to provide evidence of the Adult’s finances before our initial meeting.  If you are not eligible for Advice and Assistance we will require to proceed on a private client basis for this element of the matter before applying for a legal aid certificate for the main application.

Pre-legal aid work is typically charged at £350 (plus VAT charged at the rate of 20%) per applicant where Advice and Assistance is not available.  GP practices typically charge around £80-£125 for a letter or e-mail corroborating your legal aid application and this would be required to be paid by the Applicant(s) only where Advice and Assistance is not available.  However, we endeavour to seek corroborating evidence from others such as Social Workers or Mental Health Officers where no such outlay may be incurred if possible.

Where applicable and upon the Order being granted, Guardians will be liable to pay to the Office of the Public Guardian a Bond of Caution fee which is on a sliding scale dependent upon the value of the Adult’s estate.  We can give you an indication of what the likely costs for this will be and you will be able to claim this cost back  from the Adult’s estate.

Scottish Legal Aid Available

 

 

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