Application For Guardianship & Court Orders

In the event that an individual has lost capacity without previously granting a Power of Attorney, a guardianship order is required to authorise another person to act on their behalf in respect of their financial and/or welfare matters.

A guardianship order can be applied for by anyone having an interest in the incapax person’s affairs. Individuals can also apply jointly to be appointed as a person’s guardian, for example children, parents or siblings of the incapax person.

The application is made to the court where the incapax person is ordinarily resident and it is at the court’s sole discretion to decide whether or not to grant the guardianship order, and on what terms and conditions (if any) they wish to impose.

The application for a guardianship order is prepared by a solicitor on behalf of the applicants. The court must be satisfied of the proposed guardians’ suitability and for this reason there are suitability reports prepared by third parties which are lodged with the application confirming whether or not the applicants are suitable to act as guardians. Two medical reports confirming the person’s incapacity are also prepared and lodged with the application. Your solicitor will arrange all of the necessary reports. Once the application has been lodged and a hearing date has been set, your solicitor must notify all other interested parties, including the incapax person, that the application has been made. These interested parties have the opportunity to oppose your application, should they wish to do so.

If you are appointed as a financial guardian then you will be required to complete further compliance requirements after the court order has been granted before you can begin acting as financial guardian. You must prepare an Inventory of the adult’s estate along with a Management Plan of how you propose to manage their estate and lodge these with the Office of the Public Guardian for approval. Once approved, you can begin acting. You will also be required to prepare and submit annual accounts to the Office of the Public Guardian for review and approval of your actions as financial guardian.

A guardianship application can take approximately 8-12 months to complete from start to finish. Until the guardianship order is granted and the follow up compliance requirements are satisfied there will be no one authorised to act on behalf of the incapax person. It is therefore always advised that individuals make a Power of Attorney whilst they are capable in order to prevent a situation where no one can act on their behalf for an elongated period of time once they have lost capacity.

Where it is identified that someone requires a guardian but that there is no one willing or able to be appointed the local authority is under an obligation to apply to become that person’s welfare guardian. If a financial guardian is also required for that person, the local authority will apply to have a professional (such as a solicitor or accountant) appointed as financial guardian from their preapproved panel.

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