apply for guardianship of an adult
Guardianship is what you need when somebody has already lost the capacity to make their own decisions and there is no power of attorney in place. It is a court application, and it is the slow, expensive route that a power of attorney exists to avoid.
The short version
Guardianship is granted by the sheriff court under the Adults with Incapacity (Scotland) Act 2000. It appoints someone to make decisions about an adult’s finances, welfare, or both. It requires medical reports, a report from a mental health officer or a suitably qualified person, and a court hearing. It commonly takes several months.
When guardianship is needed
When an adult can no longer make a particular kind of decision for themselves and there is no power of attorney covering it. Common triggers are dementia, acquired brain injury, a stroke, and a young adult with a learning disability turning sixteen.
That last one surprises families. Parents have no automatic authority over a son or daughter’s affairs once they turn sixteen, however profound the disability, and guardianship is usually the answer.
If capacity has not gone yet, stop and read this
If the person can still understand what they are doing, they can grant a power of attorney instead. That is quicker, very much cheaper, involves no court, and lets them choose who acts rather than having it decided for them. Guardianship is the fallback, not the first option.
Financial, welfare, or both
The court grants only the powers that are actually needed. A wide application that cannot be justified will be cut back, and asking for more than is required slows the process.
What the process involves
- Two medical reports on the adult’s incapacity, from doctors, one of whom must have appropriate qualifications.
- A report from a mental health officer for welfare powers, or from a suitably qualified person for financial powers only, on the suitability of the proposed guardian.
- An application to the sheriff court, with the reports and the proposed powers.
- A hearing, at which the adult’s views are put before the court.
- If granted, registration with the Office of the Public Guardian, and for financial guardianship usually caution — an insurance bond protecting the adult’s estate.
Cost and timescale
Several months is normal, and it can be longer where reports are delayed, which they frequently are. Costs include the medical reports, the court fee, the solicitor’s fee and the annual cost of caution for financial guardianship.
Legal aid is available for guardianship applications and is assessed on the adult’s means rather than the applicant’s, which means many applications are publicly funded. Ask about this at the first meeting — a great many families do not realise it and assume the cost is theirs.
Being a guardian
It is a supervised role. Financial guardians must keep accounts and submit them to the Office of the Public Guardian. Welfare guardians are supervised by the local authority. Orders are granted for a fixed period, commonly three years, and must be renewed.
Common questions
Can more than one person be guardian?
What if the family disagrees?
Is there anything short of guardianship?
A note on this page
This is general information about how the law works in Scotland. It is not advice about your situation and it cannot be, because we do not know your circumstances. Nothing here should be relied on as a substitute for speaking to a solicitor about your own case.
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