The powers granted in a financial guardianship order are specific to each application. They are drafted by your solicitor and approved by the Sheriff. Common financial powers include:
You can only act within the powers the order grants. If you need to do something not covered by the original order, you may need to apply to vary it. Getting the powers right at the application stage, with the help of an experienced solicitor, avoids this.
A guardianship order can cover financial decisions, welfare decisions, or both. They are distinct.
Financial guardianship in Scotland is a legal order granted by the Sheriff Court under the Adults with Incapacity (Scotland) Act 2000. It gives a named person, usually a family member, legal authority to manage the financial affairs of someone who has lost mental capacity. This can include accessing bank accounts, paying bills, managing investments, and selling property. Without a financial guardianship order, no one has the legal authority to act on behalf of the person who has lost capacity, regardless of their relationship to them.
To get financial guardianship of a parent in Scotland, you instruct a solicitor who specialises in the Adults with Incapacity (Scotland) Act 2000. The solicitor prepares the application, which includes a medical report confirming your parent's incapacity, a report from a mental health officer, and a draft of the powers you are seeking. The application is lodged with the Sheriff Court, the adult is served with the papers, and the Sheriff grants the order if satisfied it is in your parent's best interests. The process typically takes three to six months.
No. If your parent has lost mental capacity and there is no Power of Attorney in place, you cannot legally access their bank account without a court order. Banks are required to freeze or restrict accounts when they have reason to believe a customer has lost capacity. A financial guardianship order is the legal route that gives you authority to deal with the bank on your parent's behalf.
A financial guardianship application in Scotland typically costs between £1,500 and £3,500 in solicitor fees, depending on the complexity of the case and the powers being sought. Court fees are charged separately. Legal Aid is available for most guardianship applications in Scotland. For financial guardianship cases, eligibility is means-tested against the adult's assets. If the person has significant property or savings, they are unlikely to qualify. The solicitor confirms eligibility at the first consultation.
A standard financial guardianship application in Scotland typically takes three to six months from the time you instruct a solicitor to the order being granted by the Sheriff. In urgent cases, a solicitor can sometimes apply for an interim order that provides limited powers while the full application is processed. The timescale depends on the court, the complexity of the application, and how quickly the required reports can be obtained. Instructing a solicitor as early as possible gives the best chance of resolving the situation quickly.
You cannot sell your parent's house if they have dementia and no Power of Attorney in place, unless you have a financial guardianship order that includes property powers. The property is in their name, and solicitors and estate agents cannot legally proceed with a sale without proof that you have legal authority to act on their behalf. A financial guardianship application with property powers is the correct route. Speak to a specialist solicitor as soon as the need to sell becomes clear, as the process takes time.
Financial guardianship gives legal authority over money, property, and assets. Welfare guardianship gives legal authority over personal decisions, such as where someone lives and what care they receive. A guardianship order can cover one or both. Welfare-only guardianship automatically qualifies for Legal Aid in Scotland. Financial guardianship is means-tested. Many families apply for both financial and welfare powers at the same time, which a specialist solicitor can handle within a single application.
Acting on someone else's financial affairs without legal authority is unlawful, even if you are a close family member. Banks, solicitors, and other institutions will not deal with you, and any transactions made without authority can be challenged. If you have been managing a family member's finances informally because no one told you this was a problem, the right step is to take legal advice and regularise the position as quickly as possible.