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Guardianships

Our Guardianship work is carried out by our Litigation Partner, Sally McCartney, and by our Private Client Partner, Jacqueline Dow.  Sally was admitted as a solicitor in 1997, joined the firm in 2003 and was assumed as a partner in 2009.  Sally has practiced solely in the areas of employment law, family law and litigation since 1998.  Jacqueline was admitted as a solicitor in 1992, joined the firm in 2018 and was assumed as a partner in 2020.

When a person does not have the mental capacity to grant a Power of Attorney, an alternative is for a suitable individual to apply to the Sheriff Court to be appointed as welfare and/or financial Guardian to that person. 

Legal Aid is available for Guardianship Orders where welfare powers are necessary.  However, even where Legal Aid is made available, this does not necessarily mean that there will be no cost to the incapable person.   Where the incapable person has sufficient funds of their own, the Sheriff may order that the legal expenses of applying for the guardianship should be paid by them rather than by Legal Aid. 

It is very important that those appointed as Guardian look after the person’s affairs diligently.  It is necessary to submit regular accounts to the Office of the Public Guardian in Scotland, who have a statutory duty of oversight. Our Private Client team can advise on the best practice in managing the affairs of another as Guardian, both prior to and after the court have granted an Order.

The steps which may be involved in obtaining the necessary Court Order include:

  • Advising upon the proposed application and the legal implications of same.
  • Gathering of detailed information in relation to the incapable person and also the individual who is applying to be Guardian.
  • Drafting the application 
  • Obtaining a specialist report from a Mental Health Officer together with two separate medical reports of incapacity, one of which must come from a suitably qualified psychiatric consultant. 
  • Lodging the application with the court.
  • Sending copies of the application and reports to all next of kin of the incapable person and anyone with a close or caring relationship to them, the Mental Welfare Commission for Scotland, the Public Guardian and the Chief Social Work Officer.  
  • If required, instructing a Safeguarder to prepare a report
  • Personal appearance at court by the solicitor to conduct at least one formal hearing

Where Legal Aid is not available, we would charge for our work by reference to an hourly rate.  Our hourly rates are revised on 1st May each year, with Sally’s and Jacqueline’s current hourly rate being £245 per hour plus VAT (currently 20%) broken down into £24.50 per 6-minute units or part thereof. Additionally, a charge of 5% of the total assessed fee, plus VAT, will be charged to cover posts and incidents.

Telephone calls will be charged at £24.50 per 6-minute unit or part thereof.

Letters will be charged at 1.25 units per page of 100 words or part thereof.

The drafting of Deeds and Court documents will be charged at 5 units per sheet of 200 words or part thereof.

Copying will be charged at £1.00 per page for the first copy of any document and 40p per page for each subsequent copy.

There will be a separate one-off charge of £25 plus VAT at 20% in respect of our gathering (and updating, where necessary), documentation to comply with the Anti-Money Laundering regulations and administrative matters when opening your file.

The number of hours spent on your case will be determined by the complexity and the unique circumstances of your case.  We will discuss the likely cost of your case with you at our initial meeting. If additional costs arise due to unforeseen circumstances, we will discuss this with you at the earliest opportunity and we will advise you of any increase in cost that may arise.  The hourly rate does not include any outlays that may be required.  These are variable depending on the nature of the case.  We will discuss what these may be at our initial meeting.

The hourly rate does not include any outlays that may be required.  Such outlays will  include Sheriff Court fees of £132, fees for the two medical reports which could be in the region of £400. If the Sheriff decides that a Safeguarder is necessary (this is usually another solicitor who is appointed to obtain the views, and, if necessary, to act on behalf of the incapable person) then their fees could be in the region of £3,000.  Registration fees payable to the Public Guardian are £91 and fees due to the Registers of Scotland in relation to any heritable property are £70.   There is also the requirement to obtain a Bond of Caution (which is an insurance policy to protect the incapable person’s estate) and the cost of this is currently 0.11% of the value of the incapable person’s estate and this is payable annually by the appointed financial guardian

Sheriff Court fees, Public Guardian Fees and Fees for a Bond of Caution may be subject to a yearly increase.

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