1. What is Guardianship?
Guardianship allows a sworn Guardian control over a person’s (the Patient’s) affairs when it is deemed that the Patient is no longer capable of managing them.
You can only apply for Guardianship if the Patient has already lost capacity. It is not possible to obtain an order for guardianship on the basis the patient may lose capacity in the future. If the Patient still has capacity than they could sign a Power of Attorney.
2. Who decides if the Patient does not have a capacity?
The Patient’s doctor needs to support the application and they need to confirm in writing that the Patient cannot manage his/hers own financial affairs. It is important to note that capacity relates to the Patient’s mental ability (to retain information, make decisions etc.) rather than their physical ability. Just because the Patient may make bad decisions, that doesn’t necessarily mean they need a guardian.
3. What are the powers of the Guardian?
Essentially, the function of the Guardian is to manage and administer the assets of the Patient and to ensure that the physical care of the Patient is properly provided for.
4. Who decides who will become the Guardian?
The Patient’s family would need to decide who is the most suitable person to undertake this duty. In most cases relatives or close family friends will do so.
There are two options available; to appoint a sole Guardian or Joint Guardians. Joint Guardians act together with power for the survivor to continue act as sole Guardian.
It is also possible to appoint a professional Guardian (although this would have a cost implication).
5. Can a non-resident Guardian be appointed?
It is a standard practice for the proposed Guardian to be a Guernsey resident. In certain exceptional circumstances the Court will consider an application for to appoint a non-resident Guardian.
If there are to be joint Guardians, at least one of the proposed Guardians must live in Guernsey.
6. What is the Family Council?
Supporting a Guardian in his/her role are a group of family members known as the Family Council. This is a Group comprising up to 5 (but usually 2-3) relatives or close friends. The role of the Family Council is initially to assist the Court in relation to the appointment of a proposed Guardian by confirming the need for a Guardian and whether the proposed Guardian is an appropriate appointee. Thereafter, the members should be available to offer advice to the Guardian and to ensure that the Guardian is fulfilling his duties.
7. When is the application heard?
Straightforward applications are made during the Thursday “Guardianship” Court which sits every Thursday after the Contracts Court. Proposed Guardian(s) and members of the Family Council must attend the Court in person when the application is heard.
If a Family Council member is not able to attend for a good reason (such as illness, or that they do not live in Guernsey) he/she can be represented by a specific Power of Attorney. The proposed Guardian must be always present as if the application is successful he/she needs to be sworn in by the Court.
8. What happens after Court?
Upon a successful application, the Court will produce an Act of Court confirming the appointment of the Guardian(s). The Act of Court gives the Guardian control over the Patient’s assets. The only exception to that is if the Guardian decides to sell the Patient’s Guernsey real property, whereupon a further application for permission to sell needs to be made to the Court.
9. Can the application be made without an Advocate?
There are provisions in place for an Applicant to present his/her application to the Court without instructing an Advocate. More information can be found on the Royal Court of Guernsey’s website. An Applicant should be aware that the court will not be able to provide any legal advice.
10. The Future?
The States of Guernsey have recently approved the introduction of new legislation that will allow a person to pre-determine who will look after his/her affairs should they lose mental capacity in the future.
If you would like guidance on or assistance with making an application please contact Jana Valkovska at firstname.lastname@example.org or your usual contact at Ferbrache & Farrell.