Legal guardianships can play a vital role in protecting adults who are unable to make decisions for themselves. In Scotland, guardianship provides a legal framework allowing someone to act on behalf of an adult who lacks the capacity to manage their own affairs.
This guide explains what a guardianship is, when it may be needed, how the process works, and how it is funded.
The person for whom the Guardianship is being applied is known as the Adult.
What Is a Guardianship?
A guardianship order is a court appointment that authorises a person to make decisions on behalf of an adult who lacks the capacity to do so themselves.
The law governing legal guardianships in Scotland is the Adults with Incapacity (Scotland) Act 2000, which sets out how decisions can be made for adults who cannot manage their own welfare or financial affairs.
Guardianship allows someone, often a family member or trusted individual, to make ongoing decisions regarding matters such as:
- Personal welfare and care arrangements
- Medical treatment and health decisions
- Financial matters such as paying bills or managing bank accounts
- Property or asset management
All decisions must be made in the best interests of the adult.
When Might a Guardianship Be Needed?
Guardianship may be necessary when an adult is unable to make decisions due to incapacity, such as:
- Dementia or Alzheimer’s disease
- Learning disabilities
- Mental health conditions
- Brain injury or neurological illness
- Severe physical disabilities affecting communication
It is typically used where ongoing decisions are required, and no alternative (such as a Power of Attorney) is in place.
Types of Guardianship Orders
A guardianship order may cover different areas depending on the adult's needs. These typically include:
- Welfare Guardianship – decisions about care, health, and daily living
- Financial Guardianship – management of finances, benefits, and assets
- Combined Guardianship – both welfare and financial powers
The court will decide which powers are appropriate based on the circumstances of the individual involved.
Who Can Apply for a Guardianship Order?
Anyone with a genuine interest in the adult’s well-being can apply for guardianship. This commonly includes:
- Parents or other family members
- Close friends
- Carers
- Local authorities
More than one person may apply as joint guardians, allowing responsibilities to be shared.
What Information Do You Need to Get Started?
When you attend an appointment, you need to provide the following:
- The Adult’s full name, including any middle name.
- The Adult’s address. If it is a hospital/care facility, provide details of which Ward they are in (if applicable) and the date they went into the hospital/facility.
- The Adult’s date of birth.
- The Adult’s national insurance number.
- The Adult’s diagnosis, including the date of diagnosis.
- Details of the Adult’s nearest relatives, including spouse, children or even siblings in some cases.
- Details of the Adult’s Primary Carer.
- Information on The Adult’s income and capital.
Arrange Funding (Legal Aid or Private)
Legal Aid
- There are two types of Legal Aid that are applied for where a Guardianship is eligible. The first part, which is Legal Aid Advice and Assistance, is means tested on the Adult’s income and capital. The Full Civil Legal Aid, which comes next, is not means-tested.
- The Advice and Assistance means testing is against the Adult’s income (including state pension, benefits, wages) and their capital (including all bank accounts, property other than their main residence and any other items of value).
- Legal Aid Advice and Assistance is required to provide cover to apply for Full Civil Legal Aid.
- Full Civil Legal is required to apply to the Court to have the Guardianship Order granted.
- Full Civil Legal Aid is means-tested if the Application is to vary an existing Guardianship or if only financial powers are sought.
- Although Full Civil Legal Aid is not means-tested, if the Adult has movable assets above a set value, the Court will be asked to make an award of expenses for the entire guardianship process, payable by the Adult. This would be discussed at initial meetings before moving forward.
Private Funding
- There may be occasions where a file is not eligible for Legal Aid, or it is payable privately due to the level of the Adult’s capital. If this is the case, we will let clients know before any work is carried out.
- If a file proceeds privately, the clients will be asked to pay in advance the cost of the Psychiatrist’s fee, the GP fee (if applicable) and the Court dues for raising the Guardianship.
- The Court will be asked to make an award of expenses, meaning the costs for the entire application (including outlays) are payable from the Adult’s own estate.
- Any outlays paid by the Guardian in advance can be reimbursed from the Adult’s finances once this is granted.
- The Account of Expenses is prepared at the end of the Guardianship process and sent to the Auditor of Court for Taxation. This ensures fair and accurate fees are charged.
- The Auditor returns the taxed account to the Court and confirms the sum due.
- The sum payable is due from the Adult’s estate once the client has access to this.
Step-by-Step: The Guardianship Process in Scotland
- Once Legal Aid is in place/private feeing arrangements are agreed, the first step in the process is to draft the court papers. It is a Summary Application if it is a new guardianship, and it is a Minute if it is a Renewal and/or Variation.
- Necessary reports are instructed. For a new guardianship, this is two medical reports and a suitability report by a Mental Health Officer. For a Renewal, this is a Psychiatrist’s report and a suitability report by a Mental Health Officer.
- Paperwork, including the draft court papers are sent to clients for review and instruction at the same time as the reports are being instructed.
- Once the first report is completed, the date the professional assessed the Adult starts the countdown for when the other reports must be completed and papers lodged in court. From the date of the first assessment, the reports must be completed and the application lodged within 30 days.
- Once reports are completed, the paperwork is lodged at the court.
- The court issues a document called a Warrant of Citation, which authorises us to serve the court papers on all interested parties, including the Adult. Interested parties are the Office of the Public Guardian, Mental Welfare Commission, Chief Social Work Officer, the Adult’s Primary Carer, the Adult’s nearest relative, any Substitute Guardian and any other person who has an interest in the application (e.g. Adult’s children, siblings or parents).
- There is a window during which everyone who has been served with the court papers can tell the court whether they want to oppose the guardianship order.
- Final hearing calls at court, and, as long as there are no objections, the guardianship is granted.
- The guardianship remains in place for the period requested in the court papers. The standard period that a guardianship can be granted is generally 3 to 5 years. Indefinite guardianships cannot be sought, as they constitute a breach of human rights.
How d and h Can Help
Applying for a guardianship order can be a complex and emotional process, particularly when it involves a loved one who has lost the capacity to make their own decisions.
The team at d and h can provide clear guidance and practical support throughout the process, including:
- Advising whether guardianship is appropriate
- Preparing and submitting court applications
- Liaising with medical professionals and local authorities
- Representing you in court where necessary
With the right legal support, obtaining a guardianship order can ensure that vulnerable adults receive the care, protection, and financial management they need.
If you would like advice on legal guardianships or guardianship orders in Scotland, contact d and h for confidential guidance.