Financial & Welfare Guardianship in Scotland
In Scotland, no one has legal authority to make decisions or act on another adult’s behalf unless they have legal authority to do so (not even a spouse, adult children of an older adult or parents of a young adult).
Where an adult has not made provision under a Power of Attorney, and they lack capacity, an application requires to be made to the local court for authority to make decisions on behalf of the incapacitated adult.
The appointment of Financial and Welfare Guardians is governed by the Adults with Incapacity (Scotland) Act 2000.
Our dedicated and experienced Adults with Incapacity team guides clients through the complex application process from the initial meeting, to obtaining your order and receiving a Certificate of Authority confirming your appointment.
We can also advise on opposition of guardianship orders, variation of orders, recognition of English Court of Protection orders, seek directions from a Sheriff and provide bespoke advice to those already appointed as guardians. Power of Attorney
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FAQs
The answers to some of our most frequently asked questions.
What is guardianship?
A guardianship order appoints someone to act on another person’s behalf. The order is tailored to meet the incapable adult’s needs and may cover welfare, finances and/or property. Examples of powers include:
Financial and property powers – dealing with ongoing operation of a bank account and purchasing items for the incapable adult’s benefit; ongoing management, sale or purchase of accommodation, signing tenancy or occupancy agreements.
Welfare powers – deciding where the incapable person should live, what care and services they will receive and make decisions about medical treatment.
What is involved?
Guiding principles are laid out in legislation. The application should follow these principles. The application is lodged with the local court along with vouching evidence in the form of various forms of report. A court hearing date is assigned, and the Sheriff decides whether the powers should be granted and for how long.
How long will the order be granted for?
The order will usually be time limited. Legislation provides that an initial appointment should be for a period of 3 years. Depending on individual circumstances a longer period of appointment may be granted by the Sheriff. In limited circumstances an indefinite order may be granted.
How much will it cost?
Legal Aid is available for guardianship applications, even where the incapable adult has property or money in the bank, Legal Aid may still be available. Our team will discuss the availability of Legal Aid with you at the initial meeting.
How long will it take?
This very much depends on:
(i) individual circumstances; and
(ii) what local authority and court jurisdiction the case falls under. On average, it can take anywhere from 9-18 months. In certain circumstances applications can be granted within a couple of months, or for some areas may be up to 24 months before the order is granted, as our dedicated team handle cases all over Scotland
Are there alternatives to guardianship?
Yes. Access to Funds, Appointeeship, or an Intervention Order may be more appropriate. Our experienced team can provide you with tailored advice
