Home / Guardianship Orders / FAQs

FAQs

: Can I apply for legal aid?
: What's the difference between a guardianship and an intervention order?; Can a Scottish Guardianship Order be used in England or Wales?; Can a Scottish Guardianship Order be used outside of the UK?; I want to transfer a share of funds from a joint bank account; What is the annual review?; Should I put gains and losses in for bank accounts?; I have sold the adult's house during the accounting period how do I show this on the form?; Can I do a simplified account even though the adult's estate is over £30,000?; What prevents most accounts from being authorised when they are first reviewed by us?; What receipts do I have to keep?
: Is there a fee?; Can I claim expenses for outlays while acting as guardian?; I've used my own transport, can I claim for mileage?; Can I make a gift on the adult’s behalf?
: What is a dwelling house?
: What happens if the guardian dies?
: What happens if the adult dies and there is a financial guardianship is in place?; What happens if the adult dies and there is a welfare guardianship is in place?; Can I apply to be discharged from my role as financial guardian?
: Can I set up a trust fund for the adult?; I have concerns about the way a financial guardian is carrying out their duties.; Why does OPG reserve the right to carry out an Experian search on the adult in a financial guardianship case?; Why does OPG reserve the right to carry out an Experian search on financial guardians?; What else might OPG use an Experian search for?; Does OPG share any of the information obtained during the Experian search?; Does the Experian search carried out by OPG affect the individual’s credit rating?

Legal Aid

Q. Can I apply for legal aid?

A. If you are applying for an order relating to the personal welfare of an adult with incapacity, you may be eligible for assistance with certain legal costs. Contact the Scottish Legal Aid Board for further information.

Guardianship or intervention order

Q. What's the difference between a guardianship and an intervention order?

A. A guardianship order allows someone to make on-going decisions on behalf of an adult, such as paying bills, dealing with bank accounts or making decisions about care and personal welfare matters.

An intervention order is designed to allow someone to make one-off or specific decisions, such as selling a house belonging to the adult or deciding what medical treatment is best for the adult at that particular time.

Q. Can a Scottish Guardianship Order be used in England or Wales?

A. The Mental Capacity Act 2005 (MCA) is the relevant legislation. One needs to draw a distinction between power of attorney and guardianship (called deputyship under the MCA) as the ‘rules’ are quite different. This response relates to guardianships. A Scottish guardianship order can be used in England or Wales if an Organisation (e.g. a bank) accepts its authority. However the Organisation may require validation of the Scottish order from the English Courts [Court of Protection]. A guardianship order meets the definition, under the MCA, of a “protective measure” so an application can be made to the Court of Protection for endorsement. The Register of international measures provides further information.

If you need more information about the English system or how best to proceed in England please contact the Office of the Public Guardian for England & Wales, telephone: 0300 456 0300 e-mail: customerservices@publicguardian.gsi.co.uk or seek independent [English] legal advice.

If you are seeking to rely on a Scottish power of attorney in England or Wales please see the relevant response.

Q. Can a Scottish Guardianship Order be used outside of the UK?

Each country will have its own position on this. You should first establish what the country’s requirements are. The country may require ‘legalisation’ or ‘Apostillation’ of your guardianship order. This is done via the UK Foreign and Commonwealth office; for more information please see Get your document legalised - GOV.UK. You are likely to require a hand signed copy of your order (not an electronically signed version) and a copy of the court order (interlocutor) appointing you. Please telephone us if this is the case, we can arrange for these to be issued to you; 01324 678300. It is likely that the country will require you to have the document translated into their native language and this is likely to be by a nominated official translator of that country.

Joint bank accounts

Q. I want to transfer a share of funds from a joint bank account

A. If funds are held in a joint bank account and a share of the funds is to be transferred then both account holders or their representatives e.g. a financial guardian must give permission to transfer any funds. In summary both account holders or their legal proxies must be in agreement as to how the assets will be separated.

Reviewing your accounts

Q. What is the annual review?

A. All financial guardians are required to submit a yearly record of their financial transactions in the form of an annual account, and when appropriate a final account. We will contact guardians annually to request the appropriate type of account. If however guardians have not been contacted by us in the past 12 months then please let us know.

Q. Should I put gains and losses in for bank accounts?

A. No. Gains and losses should only be used when an asset has been sold for either a loss or profit.

Q. I have sold the adult's house during the accounting period how do I show this on the form?

A. If the adult's house was sold during the accounting period it should be entered in the form in Schedule 1 Heritable Assets at the start of the accounting period. The amount received from assets column should be filled in with the sale price and any loss or gain entered. The final column in Schedule 1 Heritable Assets should be left blank. Refer to case study B and the worked example may be of some assistance.

Q. Can I do a simplified account even though the adult’s estate is over £30,000?

A. No. Simplified accounts are only suitable for estates when the moveable estate is under £30,000 (ie. any assets excluding heritable property).

Q. What prevents most accounts from being authorised when they are first reviewed by us?

A. A high percentage of accounts are not approved first time round, usually because evidence is missing or the accounts do not balance. When sending us your account it is essential to provide evidence as requested. If you are having difficulty balancing your account, please let us know.

Q. What receipts do I have to keep?

A. We will normally request receipts for individual items over the value of £100, but may request to see receipts for all purchases. Therefore please retain receipts for any purchases made using the adult’s funds.

Fees for the review of accounts

Q. Is there a fee?

A. The Public Guardian charges a fee for reviewing your annual account. This is paid from the adult's estate.

The amount due will depend on whether you are submitting a simplified account or standard account. We will tell you more about this in our letter when we ask for your account.

There are certain circumstances where you might be entitled to a fee exemption.

Q. I've used my own transport, can I claim for mileage?

A. If you have used your own transport while carrying out your guardianship duties you will be able to claim the public transport rate of payment which is:

car or motorbike 31.4p per mile

If we have accepted that you have used your own transport because there was no alternative public transport the rates are:

car 47.1p per mile
motorbike 33p per mile

Q. Can I claim expenses for outlays while acting as guardian?

A. Depending on the wording of the final interlocutor, expenses may be claimed against the adult’s estate. This should form part of the management plan and will be subject to our approval.

Making a gift on behalf of the adult

Q. Can I make a gift on the adult’s behalf?

A. A financial guardian may make a gift from the adult’s estate only if authorised to do so by the Public Guardian. However, the Public Guardian will not require the financial guardian to seek permission for small gifts of a value of less than £100 each or where recurring identified gifts do not exceed £500 annually provided such gifts are identified in the management plan.

Consent to sell or purchase a dwelling house

Q. What is a dwelling house?

A. This is a property which the adult may still live in or a property that previously was their place of residence, so holiday homes or a second property would not be considered as a dwelling house for the purposes of consent.

The Public Guardian has been given a statutory duty to determine whether or not to give consent to the sale or purchase of a dwelling house belonging to the adult. This consent may provide protection to you in the event of a future challenge to your decision.

Death of guardian

Q. What happens if the guardian dies?

A. The deceased guardian’s representative should notify us. We will update the public register and notify the following of the change of circumstances:

The adult, unless otherwise directed
The local authority, where the guardian had welfare powers
The Mental Welfare Commission, where the guardian had welfare powers

We will issue a new certificate of appointment if there is a remaining joint or substitute guardian, who has confirmed that they are willing to act. The remaining guardians will need to find caution or have another form of security in place, if this is required. You should refer to your court order to see if this is a requirement.

The new guardian or the representative of a deceased financial guardian may be asked to prepare a final account in respect of the deceased guardian’s actions.

If no replacement guardians are available, we will write to the local authority to advise of this.

Death of the adult

Q. What happens if the adult dies and there is a financial guardianship is in place?

A. The guardian should write to us as soon as possible to tell us about the death of an adult.

In the case of a financial guardianship, guardians should provide us with the original extract death certificate.

On receipt of the death certificate, we will:

Update the public register
Notify the Keeper at Registers of Scotland if the adult owned heritable property at the time of their death
Notify guardians about the steps to bring the guardianship order to a close.

Q. What happens if the adult dies and there is a welfare guardianship is in place?

A. The guardian should provide us with a copy of the death certificate.

On receipt of the death certificate we will:

Update the public register
Notify the local authority
Notify the Mental Welfare Commission

Applying to be discharged from financial guardian duties

Q. Can I apply to be discharged from my role as financial guardian?

A. Yes. When your appointment is at an end and we are satisfied with your final account you can apply to the Public Guardian to be discharged from your management of the adult’s property and financial affairs. We provide guidance on how to apply for discharge and a form which can be completed and sent to us to us. Please note that your discharge application should be made within three years of the date your final account was approved.

Trust funds

Q. Can I set up a trust fund for the adult?

You should check the court order to ensure that you have powers to set up a trust on behalf of the adult. A specific power to set up a trust must be listed, a general power to “invest” or to “sign any deed” is not sufficient. If this power has not been granted, you will need to lodge a minute to vary the court order with the sheriff court to have this additional power added. You should seek legal advice if you are thinking about changing the terms of the order.

Once you have taken legal and financial advice you should send a copy of the draft deed and any supporting documentation* to us for consideration, along with an accompanying statement which explains the rationale behind setting up the trust. This statement should include, in particular and where relevant, detail of planning relating to means-tested benefits and care contributions.

*Supporting documentation may include a copy of the adult’s Will, financial reports, a letter/expression of wishes and/or details of heritable property owned by the adult.

When considering the draft deed and accompanying documents, we will check for the following (this list is not exhaustive):

That the “type” of trust is proposed is clearly stated (Bare, Liferent, Discretionary etc. including Personal Injury Trusts)
That more than one trustee is appointed and (ideally) that the financial guardian(s) is/are one such trustee
That there is (ideally) a neutral, professional trustee
That there are provisions/powers for the trustees to make decisions by majority
That there are provisions for replacement trustees to be appointed or assumed
That if the deed refers to the law of any country, that it must be the law of Scotland
That the principles of the Adults with Incapacity (Scotland) Act 2000 are upheld

If we are satisfied with the terms of the deed and statement we will confirm this to you in writing.

If we have any concerns we reserve the right to refer the matter to the sheriff for a direction in terms of section 3 of the Act and/or oppose any application to vary.

Concerns

Q. I have concerns about the way a financial guardian is carrying out their duties.

A. If you are concerned about how a financial guardian is carrying out their duties, please contact us and have the following information to hand:

The Public Guardian’s reference number – this can be found on the certificate or any of the correspondence we have issued. The reference will begin with the letters PG.
The adult’s full name and date of birth
The name and address of the guardian
The nature and extent of the concern
Any other information that may be useful to this office

Please note that we do not supervise the actions of welfare guardians. This is carried out by the local authority in the area where the adult lives and also by the Mental Welfare Commission.

Problems with Banks and Building Societies.

If you are having issues with a bank or other financial institutions when using your powers, or if you are experiencing any barriers and delays, the organisation may be acting in breach of the adult’s equality rights.

To resolve the situation you can:

complain directly to the branch
if the situation is still not resolved, complain directly to the organisation’s head office
If difficulties are still being encountered, you can complain to the Financial Ombudsman.

You can also contact the Equality and Human Rights Commission in Scotland or Scottish Human Rights Commission if you have reason to believe that an adult with incapacity has been treated less fairly than a capable person, i.e. if there is a possible disability discrimination issue.

Experian searches

Why does OPG reserve the right to carry out an Experian search on the adult in a financial guardianship case?

When carrying out our statutory supervisory role and/or investigating concerns of misuse, it is essential that we know where the adult’s moveable estate is held. By carrying out an Experian search we can ensure that we have the details for all bank/building society accounts and can contact those financial institutions for further information, if required.

Why does OPG reserve the right to carry out an Experian search on financial guardians?

At times, when carrying out our statutory supervisory role and/or investigating concerns of misuse we may perform an Experian search. The search can provide key information such as whether or not the financial guardian has been sequestrated.

What else might OPG use an Experian search for?

We will use the search to obtain an up to date address or telephone number for the financial guardian(s) and/or the adult.

Does OPG share any of the information obtained during the Experian search?

We do not share the information found with any third parties but reserve the right to share certain information with the Sheriff and parties in the course of any court proceedings.

Does the Experian search carried out by OPG affect the individual’s credit rating?

No.