In Scotland, parents are legal guardians and are responsible for their child’s welfare, health, education and rights until the age of 16 years old. After the age of 16, the individual is considered an adult, with all the rights and responsibilities which are attached to adulthood. This means that as a parent you may not be able to influence the decisions your son or daughter with ASD may have to take. As people with ASD are generally more vulnerable, you may need to consider whether your child has the ability (capacity) to make financial and/or welfare decisions, or if they will need someone to make these decisions for them.
A Guardianship Order is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order.
The Adults with Incapacity (Scotland) Act 2000 provides the legal framework and guidance on what options are available should a person be unable to make their own decisions.
Types of Guardianship
Guardianship - powers that can be applied for
An application for guardianship must specify the 'powers' that you want. If these powers are approved by the sheriff, they will be stated on the guardianship order. The term 'power' is used to describe the area or areas of decision-making for which you need authority. The Adult with Incapacity Act allows wide flexibility, to enable the 'powers' requested to be tailored to meet the needs of the individual. Only powers that are needed now and in the foreseeable future should be requested. An application for an order may be for financial powers, welfare powers or for both. For more information visit Adults with Incapacity (Scotland) Act 2000 Guardianship and Intervention Orders - making an application: A Guide for Carers
The application, must be accompanied by certain reports (see Appendix 1), and is made to the sheriff court. The sheriff will ultimately decide whether an individual needs a guardian and whether the person who wishes to be the guardian is suitable. Once a guardianship order is granted, the order is registered with the Office of the Public Guardian (Scotland) and can be put into operation.
- power to manage the property or financial affairs of the individual, or the parts of them specified in the order;
- power to authorise the individual to carry out some transactions, or categories of transactions as the guardian may specify (this is in line with the principle that incapacity is not 'all or nothing' and the individula may be able to deal with certain areas of decision-making).
- power to deal with all aspects of the personal welfare of the individual, or with such aspects as may be specified in the order.
A guardian is allowed to act as the individuals legal representative in relation to any matter within the scope of the powers granted in the guardianship order (unless the sheriff directs otherwise).
Choosing Guardianship - The steps
Whilst a parent has the right to be Guardian of child, parents should consider who is going to take his/her place after death. A Lawyer or Guardianship professional may help with this process.
What if my child does not need a guardian?
There are some autistic adults that are capable of handling their everyday life and are able to choose whether they need a guardian or not. But, it is important to figure out some additional options. For example:
- Being granted Power of Attorney – gives legal authority to make legal and financial decisions on an individuals behalf should they themselvesbe unable to
- An administrator will be suitable in order to handle the individual’s financial resources.
- An intervention order may be required where a 'one-off' decision or action is needed. A guardianship order gives authority to act and make certain decisions over the long term. An application can be made for a financial and/or welfare order depending on the needs of the individual.
- Creating joint bank account can help anindividual manage his/her money and financial obligations, in partnership with your agreement.