Common questions about guardianship in Scotland
Adult guardianship and incapacity matters often arise suddenly and during stressful circumstances. The FAQ below reflect what people most commonly ask when trying to understand whether legal authority is required and what the process involves in Scotland.
If you think a Guardianship Order may be necessary, we can put you forward to a specialist solicitor firm in your area to make the process as easy as possible for you.
What is a guardianship order?
A guardianship order is a court order granted under the Adults with Incapacity (Scotland) Act 2000. It gives a named person legal authority to make decisions on behalf of an adult who lacks capacity due to illness, disability, dementia or injury.
The powers granted can relate to:
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Financial matters
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Welfare decisions
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Or both
The order is made by the Sheriff Court.
Do I need a guardianship order?
A guardianship order may be required when an adult is no longer able to make certain decisions for themselves due to incapacity, and there is no existing legal authority in place. This might relate to financial decisions, welfare decisions, or both.
Whether guardianship is necessary depends on the individual’s circumstances. A solicitor can help assess whether guardianship is appropriate or whether another legal option may be suitable.
What does full guardianship mean?
“Full guardianship” usually refers to an order covering both welfare and financial powers.
However, in Scotland, guardianship is tailored to what is necessary. The court will only grant the specific powers required (not a blanket authority) and must be satisfied that guardianship is the least restrictive option.
How do I get guardianship in Scotland?
To obtain a guardianship order, you must apply to the Sheriff Court. This should be handled by an experienced solicitor who specialises in Adult Guardianship.
The process involves:
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Two medical reports confirming incapacity
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A report from a Mental Health Officer (for welfare powers)
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A detailed application outlining the powers requested
Because it is a court process with strict requirements, most families instruct a solicitor to prepare and manage the application. Our website can put you in touch with law firms in your area to make the initial first step easier for you.
How do I apply for legal guardianship?
Applying involves lodging a Summary Application with supporting reports in the local Sheriff Court.
The court will consider:
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Whether the adult lacks capacity
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Whether guardianship is necessary
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Whether it is the least restrictive option
There may be a hearing if the application is opposed or if the Sheriff requires clarification.
How long does guardianship take?
The process typically takes between 3 and 6 months. A solicitor will confirm all this with you as there are many factors to consider, depending on:
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How quickly medical reports are obtained
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Whether the application is straightforward
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Whether there are objections
Urgent or interim orders may be available in certain situations.
How does legal guardianship work once granted?
Once granted, the guardian must:
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Act in the adult’s best interests
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Follow the principles of the Adults with Incapacity Act
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Report to the Office of the Public Guardian (for financial powers)
Financial guardians are supervised and must keep proper records. Welfare guardians may be overseen by the local authority.
What does temporary guardianship mean?
Temporary (or interim) guardianship may be granted where urgent decisions are required before the full application is determined.
These orders are limited in duration and scope.
Can guardianship be changed or revoked?
Yes. A guardianship order can be revoked. Again, this will be a matter for your solicitor to advise if and when this should occur.
This usually requires a further court application and updated medical evidence.
What is the difference between a Guardianship Order and an Intervention Order?
Both are granted under the Adults with Incapacity (Scotland) Act 2000, but they serve different purposes.
A Guardianship Order gives ongoing authority to make decisions on behalf of an adult who lacks capacity. It is typically used where long-term management of financial affairs, welfare decisions, or both is required.
An Intervention Order is more limited. It allows a specific one-off action, such as:
Intervention is usually appropriate where only a single decision or short-term authority is needed.
The court will only grant the least restrictive option necessary. In some cases, an intervention order may be sufficient. In others, ongoing guardianship is more appropriate.
A solicitor can advise which option best fits the adult’s circumstances.
Many families are unsure which order they need. Getting advice early can prevent delays and unnecessary cost.
What counts as ‘incapacity’ in Scotland?
Incapacity is defined under Scots law and refers to an adult’s inability to make, understand, communicate, or act on decisions due to a condition such as illness, injury, or disability.
Incapacity is decision-specific. Someone may be able to make some decisions but not others, which is why legal advice is often needed to determine what authority is required.
Can I apply for guardianship myself without a solicitor?
It is possible to make a guardianship application without legal representation, but the process is complex and requires court documents, medical reports, and ongoing legal responsibilities.
Many people choose to work with a solicitor to ensure the application is prepared correctly and to reduce stress during an already difficult time.
What if the adult does not agree with the application?
The views of the adult concerned are taken seriously where possible. The court considers medical evidence and the adult’s circumstances when deciding whether a guardianship order is appropriate.
Disagreement does not automatically prevent an application, but it can affect how the case is handled.
Can more than one guardian be appointed?
Yes. In some cases, more than one guardian may be appointed, either jointly or with separate responsibilities. This is sometimes done to balance welfare and financial decisions.
The court decides what arrangement is in the adult’s best interests.
Is there a difference between a lawyer and a solicitor in Scotland?
In Scotland, the term “lawyer” is often used informally to describe legal professionals. Solicitors are qualified lawyers who provide legal advice, prepare court applications, and represent clients in guardianship and adult incapacity matters.
If you are searching for a guardianship lawyer, you will usually need a solicitor with experience in adult incapacity law.
Who can apply to be a guardian?
Applications are commonly made by family members or close relatives, but this is not always the case. Suitability depends on the individual circumstances and the role being applied for.
A solicitor can advise on eligibility and any potential issues.
How much does a guardianship order cost in Scotland?
The cost varies depending on the complexity of the case, whether welfare and financial powers are involved, and how long the process takes. Costs may include legal fees, court fees, and medical reports.
A solicitor will explain likely costs after reviewing your situation and before proceeding.
Is legal aid available for guardianship cases?
Legal aid may be available in some guardianship cases, depending on eligibility and circumstances. Availability can vary.
A solicitor can advise whether legal aid may apply in your case and what evidence is required.
What happens if no guardianship order is in place?
Without legal authority, it may be difficult or impossible to make certain decisions on behalf of an adult who lacks capacity, particularly around finances, care arrangements, or property.
This can lead to delays, uncertainty, and added stress at an already challenging time.
How this service can help
This service helps connect people with solicitors experienced in adult incapacity and guardianship matters in Scotland. We provide information and a structured first step, before legal advice is given directly by a solicitor.
Submitting an enquiry does not create any obligation to proceed.
Next steps
If you’re unsure whether guardianship is required or would like to speak with a solicitor about your situation, you can submit an enquiry using the form below.
