Dementia Support Line
Guardianship
It isn’t always necessary to detain a person in hospital for them to be assessed or treated. When detention isn’t necessary, section 7 of the Mental Health Act gives the option for an individual called a ‘guardian’ to be appointed.
- The Mental Health Act 1983
- Sections of the Mental Health Act for people with dementia
- The key roles in the Mental Health Act
- Safeguards and challenges to a detention under the Act
- How to support a person with dementia who has been detained under the Mental Health Act
- You are here: Guardianship
- Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards and the Mental Capacity Act 2005
The Mental Health Act 1983 and guardianship
What is a guardianship?
A guardian has special legal powers to make some decisions for a person who has a mental disorder. It is rare for someone with dementia to have a guardianship order, but it is an option.
A ‘guardianship order’ made under the Mental Health Act has some similarities with detention in hospital under the Act. For example, decisions may be made for the person that they might not agree with. Plus, an order cannot be made unless there is a risk of harm to them or others. However, under a guardianship order, the person can stay living in their community.
A guardian has three powers:
- to decide where the person lives
- to require the person to attend medical or other appointments – but they can’t use force to take the person there
- to require that mental health professionals are able to visit the person where they live.
A guardian does not have power to make the person have treatment they don’t agree to, or to consent to treatment on their behalf if they lack mental capacity to agree. A guardian does not have power over the person’s finances.
Applying for a guardian to be appointed
The process to apply for a guardian to be appointed is similar to the process for having a person detained under section 3 of the Mental Health Act.
An AMHP or the person’s nearest relative can apply for a guardianship order if there is a risk of harm to the person or others. Two doctors must agree. An AMHP cannot apply if the person’s nearest relative does not agree to it.
A guardianship order will last for six months to begin with. After this, it may be renewed for another six months and then for a year at a time.
Who can be a guardian?
The person’s local authority is usually named as their guardian. Occasionally, a relative or friend may be appointed.
Objecting to a guardianship order
A guardianship order can’t go ahead if the person’s nearest relative objects to it. Also, after an order has been granted, the nearest relative can ask the Mental Health Tribunal to decide if the guardianship is needed. A person who has a guardian appointed for them has the right to access an IMHA.
Legal and financial advice
More information on legal and financial issues for those affected by dementia, including sources of help and support.