Guardianship

A brief guide to explain Guardianship

When is Guardianship necessary?
An application for guardianship may be necessary where a person has become incapable of managing their own affairs due to physical illness or mental incapacity and has not made a Lasting Power of Attorney prior to becoming incapacitated. It may also be necessary in the case of a child with no living parents who needs an adult to act on his/her behalf e.g. in buying/selling real property or in legal proceedings.

[Where a person is not yet incapacitated, it may be possible for that person to make a Lasting Power of Attorney (see separate leaflet) which will have effect if the person subsequently loses capacity. Guardianship is only necessary where capacity has already been lost.] If there is any doubt as to whether a person has capacity, medical advice should be sought. A doctor’s report will in any event be necessary to support an application for guardianship.

Who can be a Guardian?
A Guardian may be a relative or friend or a professional person (at a cost). There can be one sole guardian or joint guardians. Where there are joint guardians, power will be reserved to the survivor of them to continue to act if one dies (which avoids the necessity for a further application). Normally, the guardian is required to be a Guernsey resident. However, in some circumstances the Court will permit the appointment of a non-resident Guardian – but if there are joint guardians at least one should be a Guernsey resident.

Appointing a Guardian
A Guardian must be appointed by the Royal Court and information as to the procedure for applications (with links to forms, the relevant Practice Direction and details of fees) is available at: Royal Court Home Page – Royal Court (search for ‘Guardianship’).

The appointment of the Guardian(s) must be supported by a Family Council made up of (normally) three of the closest blood relatives of the patient (who may appear by Attorney if necessary – they do not need to be a Guernsey resident). If they are not the closest relatives it will be necessary to explain to the Court why the closest relatives are not members of the Family Council.

Medical evidence that the patient is unable to manage their affairs must be provided by a medical professional who has seen the patient within the last six weeks prior to the Court hearing – this will be provided by Affidavit which must include the particulars set out in Practice Direction No. 4 of 2009 (also available on the Royal Court website).

How to make a Guardianship application
A Guardianship application may be made without the assistance of an advocate, in which case the applicant is required to comply with rule 90 of the Civil Rules and first seek permission from the Court to make an application for Guardianship. They are therefore likely to need to go before the Court twice, to get permission and then to bring the Guardianship application itself. In practice, an advocate is often helpful but may not be strictly required for straightforward family applications. However, using an advocate is strongly advisable and sometimes effectively necessary to navigate the Court process.

Guardianship applications are normally heard on Thursday mornings. The Family Council members will be asked if they approve the appointment of the applicant as Guardian and then the Guardian(s) will be required to take an oath or affirm. If there is opposition from the family, it may be necessary for the application to be adjourned to a later date for a full hearing.

The Royal Court website includes relevant downloadable forms which can also be obtained from the Greffe.

The Greffe can give unrepresented applicants procedural, but not legal, advice.

Duties of a Guardian
A Guardian, once appointed, will have the duty to manage and administer the assets of the patient and to ensure that the physical care of the patient is properly provided for. To that end, the Guardian has the power to do anything which the patient would be able to do (provided that it is in the patient’s best interests) if they were capable except for selling real property – if it is considered necessary in the patient’s interest to sell real property a further application to the Court for authorisation will be necessary.

Once the Guardian is appointed the Family Council should be available to offer advice to the Guardian as required and to ensure that the Guardian is fulfilling their duties. They do not have the power to override the decisions of the Guardian but if they believe that the Guardian is mismanaging the affairs of the patient they can make an application to the Royal Court.

General disclaimer
The purpose of this note is to provide general guidance. While it is believed to be accurate and up to date, it is not authoritative and has no legal effect. No warranty is given that the text is free of errors and omissions, and no liability is accepted for any loss arising from its use. Users of this guidance note are encouraged to exercise their own skill and care in relation to the information contained in this guidance note and to obtain relevant professional advice.