Guardianship
Guardianship is an important safeguard for adults with incapacity. Find out more about what guardianship means, and why is may be needed.
What is Guardianship?
A Guardianship Order is a court appointment granted under the Adults with Incapacity (Scotland) Act 2000. Once granted, it allows a person to act and make decisions on behalf of an adult with incapacity.
The order is made at the Sheriff Court and will state who has been appointed by the sheriff to look after the affairs of the individual, it will say what the appointed person, called a guardian, can actually do.
Why Would I Need a Guardianship Order?
If there is not already something in place, such as Power of Attorney, then you may find the need to apply for an order to give you the legal authority to do certain things for the adult.
When someone is impaired suddenly or gradually without a power of attorney document, a person of interest may then apply for a guardianship order.
What does the Guardianship process look like?
If you are thinking of applying for a guardianship order, it is important to seek legal advice. The process tends to be much more complex than Power of Attorney.
An application called a ‘Summary Application’ will be sent to the Sheriff Court. With this, you will be required to send 2 medical reports (which are completed by 2 individual registered and licensed medical doctors) and other supporting documentation.
Who can be a guardian?
Anyone can apply including a partner, family member, friend or professional such as a solicitor, accountant or someone from the person’s local authority social work department.
The Office of Public Guardians have an excellent resource with more information about Guardianship:
When would I get a Guardianship Order instead of Power of Attorney?
A Power of Attorney is primarily utilised as a precautionary measure, allowing an appointed attorney to act in the event of sudden or advancing illness or injury that incapacitates an individual. Guardianship is a retroactive legal process intended to safeguard an individual with incapacity.
If the person you care for still has capacity, it is encourage to apply for a Power of Attorney document. This process is a lot easier to arrange, and requires less money and legal input. If you’d like to learn more about Power of Attorney, visit our dedicated information page.
Download our factsheet on Guardianship
Your most asked questions
About Power of Attorney and Guardianships
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The cost of a Guardianship Order can vary, depending on your solicitor and other circumstances. The base level registration fee costs £107, however you may also need to pay for other documentation such as medical reports.
Legal Aid may be available to help you cover the costs of your Guardianship application, you can discuss this with your solicitor.
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A typical Guardianship Order lasts for 3 years. The Sheriff appointing the order has discretion to make a shorter or longer appointment, depending on individual circumstances. An order ceases on the death of the adult.
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A person with incapacity is someone who is unable to make or communicate informed decisions about their personal, financial, or medical matters due to a physical or mental condition.
This could be due to various reasons such as a serious illness, cognitive disorders (like dementia), brain injuries, or mental health conditions that impair their ability to understand or process information needed to make decisions.
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When applying for Guardianship, you may be entitled to legal aid depending on your current financial situation. More information about who can recieve legal aid is available on the Scottish Legal Aid Board’s website.
If you decide to go through the Guardianship process with Carers of West Lothian’s clinic with Solicitors for Older People in Scotland, the lawyers will check if you may be entitled to legal aid.
More questions on guardianships?