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
- Which sections of the Mental Health Act are relevant to dementia?
- The key roles of the Mental Health Act
- Safeguards and challenges to a detention under the Act
- You are here: Guardianship
- Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards and the Mental Capacity Act 2005
- The law in Northern Ireland
- The Mental Health Act 1983 - other resources
The Mental Health Act 1983 and guardianship
A guardian has special legal powers to make some decisions for a person who has a mental disorder. It is rare for a person with dementia to have a guardianship order but it is an option.
A ‘guardianship order’ is not the same as a ‘hospital section’ that is made under the Mental Health Act. However guardianship orders and hospital sections are similar. For example if a person is the subject of a guardianship order, decisions may be made for them that they might not agree with. But it can be less restrictive for the person to stay living in their community than to go into hospital. Doctors should therefore consider whether guardianship is more appropriate than detaining someone in hospital.
A guardian has three powers:
- to decide where the person lives
- to require the person to go to specific places for medical treatment, work, education or training (but they can’t use force to take the person there)
- to demand that a doctor, an AMHP or another specified person is able to visit the person where they live.
The decisions a guardian makes must be the least restrictive option for the person with a mental disorder. The guardian must also always make decisions in the person’s best interests. They can’t authorise medical treatment and they can’t control a person’s money or property.
Except for having the power to decide where a person lives (which includes the power to bring them back if they leave), a guardian can’t legally force a person to do something they don’t want to do. Being a successful guardian therefore depends a lot on the relationship the guardian has with the person with the mental disorder.
The process to apply for guardianship 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 guardianship if the person is putting their own health at risk or if they are a danger to themselves or others. An AMHP cannot apply for a guardianship order if the person’s nearest relative does not agree to it.
The person’s local authority is usually named as their guardian. Or occasionally a friend or relative of the person may be appointed as the guardian. 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.
Legal and financial advice
More information on legal and financial issues for those affected by dementia, including sources of help and support.
Objecting to a guardianship order
A guardianship order can’t go ahead if the person’s nearest relative objects to it. If they object when the order is still being applied for, the order will not go ahead. The nearest relative can also object to an order after it has been made and a guardian has been appointed, if they think the guardianship is not necessary. If this happens the matter will go to a tribunal. The tribunal can decide whether or not to end the guardianship.
A tribunal must agree to end a guardianship order in certain circumstances. For example this will happen if:
- the person no longer has a mental disorder at the time when the tribunal considers the case
- the guardianship order is not necessary for the person’s welfare or to protect other people.
If a person has a guardian appointed for them, the person has the right to access an IMHA. See the section ‘The key roles’ for more information about IMHAs.