Guardianship & The Mental Health Act

A guardianship order allows you to make on-going decisions on behalf of a loved one with a mental illness, allowing them to experience a better quality of life outside of the hospital.

Research conducted by the NHS has shown that one in four adults experience mental illness, and many more of us know and care for people who do. If a loved one has a mental illness that requires being detained in the hospital, the guardianship order under the Mental Health Act can offer them a better quality of life.

Mental illness can result in the inability for a person to make their own decisions, but by applying to become a legal guardian, you have the power to make decisions on their behalf. A guardianship order ensures that you can support and care for your loved one as they do not have to be detained in the hospital. Romain Coleman’s mental health solicitors specialising in dementia and Alzheimer’s can help you become the guardian of a loved one, and assist you with all the legal procedures.

What does the Mental Health Act cover?

The Mental Health Act (MHA) 1983 is a law in England and Wales that was updated in 2007. This act informs people with mental illnesses what their rights are regarding:

  • Treatment in the community
  • Assessment and treatment in hospital
  • Entry into the hospital

Most people receiving inpatient treatment in psychiatric wards have agreed to go into hospital as informal patients – also known as voluntary patients. Although some patients, known as formal patients, have been detained in the hospital without their agreement under the Mental Health Act. Informal patients do not have specific rights, particularly the right to leave the hospital.

Cases arise where it is not necessary to detain someone for assessment or treatment in the hospital, even though they have a mental illness and cannot make decisions by themselves. Under the Mental Health Act, a guardian can be appointed to look after them and make decisions on their behalf. This act also allows them to live within the community rather than being detained at the hospital.

What does a guardianship entail?

You can apply for guardianship if a loved one’s illness means that they meet the criteria of Section Two of the Mental Health Act – detention for assessment in hospital. A guardianship can prevent them from being hospitalised and lets them live in the community under your watch. This order also gives you, as the guardian, special legal powers to make some decisions on their behalf.

A guardian has three powers:

  • The right to decide where the person will live
  • The right to decide if the person needs to go for medical care, treatment or to work
  • The right to demand that a doctor comes to see the person in the place where they live

It is your responsibility to make the best decisions for the person with a mental illness, but you will have no control over the person’s money, financial affairs or property. Additionally, you cannot decide what medical treatment the person should have.

Apart from having the power to decide where the person lives (residence of power), you are not allowed to force the person to do something they do not want to do. For a guardianship to work well, you and the person with the mental illness must have a good relationship. In the instance where the person does not want to go to the place that you have chosen as their residence, you have the residence of power to take them there.

How to become a guardian

Although guardianships are more commonly created for children, adults with mental illnesses need protection when they can no longer protect themselves. To become a guardian, you need to make an application via an approved mental health professional or the court. As part of the application process, there is a case conference involving all relevant professionals, the person with the mental illness and the relative/carer. This conference will cover how the person’s needs are going to be met and whether guardianship is the appropriate route to take.

The application for guardianship needs to be accepted by the local authority before the person is officially under guardianship. When approved, the guardianship will last six months before expiring and can be renewed for another six months. After this, the guardianship is renewed once a year. The renewal must happen within the last two months of the guardianship period.

At every renewal point, mental health professionals can decide whether or not the guardianship should be discharged. This decision needs to be approved by the local authority. In some cases, it is also possible for the local authority to be named as the guardian.

Lasting Power of Attorney and deputyship

Although a guardianship can offer a loved one a better quality of life, it does not provide you with many rights to make important decisions on their behalf. Therefore, we recommend that your loved one also makes a Lasting Power of Attorney or that you apply to become a deputy from the Court of Protection.

  • Lasting Power of Attorney: This legal document lets your loved one appoint someone they trust to make decisions on their behalf when they lack the mental capacity to do so. If they appoint you as an attorney, you will then have more power when it comes to deciding what to do when it comes to their health and welfare as well as their property and financial affairs.
  • Deputyship: You can apply to become a loved one’s deputy when they can no longer make decisions for themselves. You can become a property and financial affairs deputy, a personal welfare deputy, or both. If you want to make a single important decision for a loved one, you can apply to the Court of Protection for a one-off order.

If a loved one can no longer make decisions for themselves and they did not make a Lasting Power of Attorney, you can apply for deputyship as well as guardianship to ensure that you have more power to make decisions in their best interests.

Let Romain Coleman help you with becoming a guardian

Our dedicated mental health solicitors specialising in dementia and Alzheimer’s understand all elements of the Mental Health Act and will assist you with successfully becoming a guardian or deputy for a loved one. With years of experience in dealing with cases of mental illness, we can inform and sensitively guide you throughout the legal processes, ensuring that the rights of your loved one are protected.

To get in contact with one of our experienced solicitors, call 0208 520 4555 or enquire via our online form.

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This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.