How to obtain legal guardianship over a parent

Seeking a guardianship order is something children might do if their parents lose their capacity to look after their own welfare due to mental illness. Whereas power of attorney will allow a relative to take control of a parent’s financial affairs, a guardianship order granted by a court allows the guardian to make wider decisions about things including where a person will live and what medical treatment they will have. The court will require any application to be supported by medical and social care professionals.

Make an application for guardianship under the Mental Health Act 1983 in England and Wales. It allows you to act as a guardian for a parent with a mental disorder so that they are able to remain living in the community. You can be a guardian for a parent as their nearest relative, and a guardianship order gives you power to make some decisions on their behalf, as long as these decisions are in your parent’s best interests.

A guardianship order must be supported by two doctors and is granted by the court under section 37 of the Mental Health Act 1983. People subject to a guardianship order can appeal to the court. An order must be reviewed after six months in any case and then again at 12 month intervals.

Apply to a sheriff under section 58 of the Adults with Incapacity (Scotland) Act 2000. The sheriff will grant an application for a period of three years if satisfied that your parent is incapable of making decisions to protect his or her welfare, interests, property or financial affairs. You will need to complete an application form supported by two medical assessments to present at a hearing. A solicitor will be able to help you with this if required.

Use article 18 of the Mental Health (Northern Ireland) Order 1986 to acquire a guardianship order in Northern Ireland. This will need to be supported by an Approved Social Worker and a doctor. Your parent would have to be suffering from “mental illness or severe mental handicap” and the guardianship must be in their best interest. Guardianship is as useful alternative to detention in hospital and gives you power to require your parent to reside at a certain place, to attend medical appointments and to give access to a doctor or Approved Social Worker

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About the Author

Paul Bayliss has been writing since 2003 with work appearing in publications such as "Verbatim," "Your Cat" and "Justice of the Peace." He has worked for central and local governments in the U.K. and his areas of writing expertise are travel, sport and social work. He holds a Bachelor of Arts in politics from Leeds University.