What Is a Guardianship Order in Scotland?

When a loved one loses the ability to make decisions for themselves, it can be a distressing and uncertain time. Understanding your options, and the legal frameworks in place to protect vulnerable adults, is a crucial first step.

In Scotland, when no Power of Attorney exists and an individual is deemed to lack capacity, it may be necessary to apply for a Guardianship Order. This blog explains what a Guardianship Order is, when it’s needed, and how the process works, helping you understand your responsibilities and options.

What Is a Guardianship Order?

A Guardianship Order is a legal appointment made by the Sheriff Court, giving one or more individuals (known as guardians) the authority to make decisions on behalf of an adult who is deemed to lack capacity.

The appointment is made under the Adults with Incapacity (Scotland) Act 2000, which provides a legal framework to safeguard the rights and welfare of adults who are unable to make decisions for themselves due to mental illness, learning disability, dementia, or brain injury.

This type of legal authority is often necessary when the adult does not have a Power of Attorney and needs someone to oversee their personal welfare or financial affairs.

When Is a Guardianship Order Needed?

In many cases, people prepare in advance by signing a Power of Attorney, appointing someone they trust to act on their behalf if they lose capacity. However, there are circumstances where no such arrangement is in place:

• The adult never had capacity to grant a Power of Attorney (e.g. due to a lifelong condition or disability)
• The adult lost capacity suddenly and had not appointed an attorney
• A Power of Attorney exists but is no longer sufficient or is being challenged

In these situations, a guardianship application may be the only way to lawfully manage that person’s welfare or property and financial matters. Applications are often made following advice from health and care professionals, particularly where there is urgent need to act.

What Powers Does a Guardian Have?

A guardian may be granted welfare powers, financial powers, or both. The specific powers sought must be justified within the court application.

Welfare Powers

These relate to personal and health-related decisions, such as:

• Deciding where the adult should live
• Consenting to medical treatment
• Making arrangements for care and support services
• Accessing the adult’s social work files and medical records

Welfare guardians are often supported by the local authority, particularly in cases involving complex care needs.

Financial Powers

These relate to managing the adult’s finances, including:

• Operating or opening bank accounts
• Managing pensions or benefits
• Paying bills
• Buying or selling property
• Budgeting or investing funds

In some cases, powers may include management of heritable assets, such as the sale of a property, or the handling of a trust fund.

It is essential that any powers sought are tailored to the adult’s specific needs. The court will not grant unrestricted authority - each power must be necessary and proportionate.

Who Can Apply for Guardianship?

Typically, applications are made by family members or close friends. In some cases, the Chief Social Worker of the local authority may apply if there is no one else suitable or willing.

Applicants must demonstrate:

• That the adult lacks capacity in relation to the decisions in question
• That there is a need for someone to act
• That the applicant is suitable to be appointed

You may be asked to provide financial documentation such as bank statements, mortgage statements, or evidence of income and expenditure. In some cases, the suitability of the applicant may be assessed in a suitability report prepared by the Mental Health Officer.

What Reports Are Required?

An application for guardianship must be supported by:

• Two medical reports, from different doctors, confirming the adult’s incapacity
• A Mental Health Officer (MHO) report, where welfare powers are sought
• A report from someone with knowledge of the property and financial affairs of the adult, where financial powers are sought
• In some cases, Safeguarder and/or a Curator ad litem may be appointed by the court to investigate and report

These supporting reports help the court to assess the need and appropriateness of the proposed guardianship.

Is Legal Aid Available for Guardianship Applications?

Yes. Many guardianship cases are eligible for civil legal aid through the Scottish Legal Aid Board, especially where the application relates to the adult's welfare. Your solicitor can help determine your eligibility and assist with the application process.

Legal Aid may cover both the solicitor’s fees and court outlays, helping to reduce the costs involved.

How Long Do Guardianship Orders in Scotland Last?

Guardianship Orders are typically granted for a fixed period, most commonly three years, though longer or shorter durations may be ordered depending on the circumstances.

Before the order expires, the guardian must apply to renew their appointment if powers are still required. The application process for renewal involves updated reports and may require a further court hearing.

Who Oversees the Guardian?

Oversight depends on the type of powers granted:

• Welfare guardians are monitored by the local council, which may conduct visits and assessments
• Financial guardians are supervised by the Office of the Public Guardian (Scotland), which may request annual accounts and ensure appropriate use of the adult’s assets

Guardians must act in accordance with the five guiding principles of the Adults with Incapacity Act. These include acting in the adult’s best interests, taking the least restrictive approach, and involving the adult in decisions wherever possible.

Frequently Asked Questions

Can there be more than one guardian?
Yes. The court can appoint joint guardians or substitute guardians (to act if the original guardian cannot).

Can a Guardianship Order be challenged?
Yes. Interested parties, including the adult themselves, can oppose or appeal the order. Legal representation is strongly recommended in such cases.

What happens if no one is willing to act?
In such cases, the local authority may take on the role of guardian, or a solicitor may be appointed professionally.

What happens if no one is willing to act?
In such cases, the local authority may take on the role of guardian, or a solicitor may be appointed by the court.

Is there a difference between guardianship orders in scotland and Power of Attorney?
Yes. A Power of Attorney is granted by an adult while they still have capacity. A Guardianship Order is granted by the court once capacity has been lost.

Can guardianship be granted for a child?
Not under the Adults with Incapacity Act. However, in Scotland, guardianship applications can be made when a child reaches the age of 16, at which point they are considered an adult under the Act. Such an order can be granted 3 months before the child turns 16, but it will take effect on their 16th birthday.

Are there court fees involved in applying?
Yes, although these may be waived or reduced depending on the applicant’s circumstances. Your solicitor can advise on court fees and legal fees.

Do I need to provide evidence of the adult’s finances?
Yes. Financial guardians must submit documents such as bank statements, property valuations, or even an Experian search, depending on the complexity of the estate.

Can I apply without a solicitor?
While technically possible, guardianship is a complex legal process. Engaging a solicitor experienced in guardianship applications in Glasgow, Edinburgh or other areas can help ensure the process runs smoothly and lawfully.

Will I need to attend court?
There is no requirement for you to attend the court hearing when the Sheriff is deciding the application, but you can if you wish. Very often the hearings are held in an online court. 

Is guardianship suitable for managing a trust fund or inheritance?
Yes. Guardianship may be appropriate where the adult is a beneficiary of a trust fund or is entitled to an inheritance they cannot manage themselves. 

How Drummond Miller Can Help

Applying for guardianship is a significant legal and emotional undertaking. Our experienced Private Client team regularly supports families across Scotland with clear advice, practical assistance, and sensitivity to the challenges involved.

We guide clients through the full guardianship process, including the preparation of supporting reports, gathering of documentation, and representation in court.

Whether you're looking to apply for guardianship in Scotland for a family member or seeking support with ongoing responsibilities, we are here to provide trusted support.

If you're considering applying for a Guardianship Order or need advice on supporting a loved one who has lost capacity, our experienced Private Client team is here to help. We’ll guide you through every stage of the process with care, clarity, and expertise.

Life brings many unexpected turns - we’re here, to get you there.