Families throughout Scotland usually arrive here because something has changed suddenly. A parent may have dementia, a stroke, or another illness that affects their ability to make decisions or a young person with a learning disability may be approaching 16. You may have discovered you cannot access a bank account, deal with selling a property, or make welfare decisions because there is no Power of Attorney in place.
If this is the case, then you may need what is called a 'Guardianship Order'. This will allow you to make either financial or welfare - or both - decisions on someones bahalf who does not have the mental capacity to do so.
The questions below explain the most common situations people face in Scotland and when a Guardianship Order may be required.
If someone has already lost mental capacity and no Power of Attorney was arranged beforehand, it is usually too late to create one. In Scotland, the usual legal route is to apply to the Sheriff Court for a Guardianship Order. This gives a named person legal authority to make decisions about finances, welfare, or both.
Not automatically. In Scotland, being a son, daughter, spouse, or next of kin does not by itself give you legal authority to manage someone else’s bank account. If there is no valid Power of Attorney in place, a Guardianship Order or sometimes an Intervention Order may be required before a bank will deal with you lawfully.
In Scotland, “next of kin” does not automatically give someone legal authority to manage another person’s finances or welfare decisions. Legal authority normally comes from a Power of Attorney made while the person had capacity, or from a court order such as a Guardianship Order if capacity has already been lost.
An Adult Guardianship Order is a court order granted under the Adults with Incapacity (Scotland) Act 2000. It allows a named person (the guardian) to make decisions for an adult who lacks capacity due to dementia, illness, disability, injury, or another condition affecting decision-making.
The powers granted can cover:
You may need guardianship if an adult is unable to make important decisions and there is no legal authority already in place. This often arises when families need to deal with bank accounts, bills, benefits, care arrangements, property matters, or medical decisions.
Whether guardianship is required depends on the person’s circumstances and whether a less restrictive legal option is available.
When a young person turns 16 in Scotland, parents no longer automatically have legal authority to make decisions on their behalf. If your child cannot make certain decisions independently because of a learning disability, autism, brain injury, or a similar condition, a Guardianship Order may be required so you can continue to deal with welfare, housing, benefits, or financial matters lawfully.
Guardianship is obtained by applying to the Sheriff Court. The process normally includes:
Because the process involves court procedure and legal documentation, many families instruct a solicitor experienced in adult incapacity law.
Most guardianship applications take around 3 to 6 months, although timescales vary depending on how quickly reports are obtained and whether the case is straightforward. In urgent situations, interim or emergency orders may sometimes be available.
The cost depends on the complexity of the case and the type of powers being sought. Costs may include solicitor fees, court fees, and medical reports. In many cases the adult’s own funds can be used to meet these costs where appropriate.
A Guardianship Order gives ongoing authority to make decisions for an adult who lacks capacity.
An Intervention Order is more limited and allows a specific one-off action, such as selling a property, accessing funds, or signing a document.
The court will normally grant the least restrictive option necessary.
Guardianship applications are often made by family members, but the court will consider who is suitable to act in the adult’s best interests. In some cases, more than one guardian may be appointed.
Guardians must act in the adult’s best interests and follow the principles of the Adults with Incapacity (Scotland) Act.
Financial guardians are supervised by the Office of the Public Guardian and must keep financial records. Welfare guardians may also be monitored by the local authority.
Without legal authority, it may be difficult or impossible to deal with financial matters, property, care arrangements, or welfare decisions for someone who lacks capacity. This can lead to delays, uncertainty, and additional stress at an already difficult time.