A guardianship order is a formal court order granted by a Scottish Sheriff Court under the Adults with Incapacity (Scotland) Act 2000. It appoints a named person, usually a close family member, as guardian. The guardian is then given the legal authority to make decisions on behalf of an adult who can no longer make those decisions themselves, whether that be due to a physical or mental incapacity.
In Scotland, guardianship applies to anyone over the age of 16 who lacks the capacity to manage their own affairs. This includes people living with dementia, a learning disability, a brain injury, or any other condition that affects their decision-making.
A guardianship order is not a removal of rights. It exists to protect people who lack capacity and to ensure that decisions made on their behalf are lawful, proportionate, and genuinely in their best interests.
The Adults with Incapacity (Scotland) Act 2000 requires that any order granted must represent the least restrictive option available. This means the powers granted to a guardian are limited to only what is genuinely needed in the circumstances.
A Power of Attorney is set up voluntarily by a person while they still have mental capacity, appointing someone they trust to act on their behalf in the future. A guardianship order is granted by the Sheriff Court when capacity has already been lost and no Power of Attorney is in place. Both achieve a similar outcome but a guardianship order is a court process rather than a private legal arrangement.
Yes. In most cases it is a close family member, such as a spouse, adult child, or sibling, who is appointed as guardian. Anyone with an interest in the person can apply, including friends and carers. The court will consider whether the proposed guardian is appropriate and acting in the best interests of the person who lacks capacity. Joint guardians can also be appointed where it makes sense to share responsibilities.
The Adults with Incapacity (Scotland) Act 2000 is the law that governs how decisions are made on behalf of adults in Scotland who lack the mental capacity to make decisions for themselves. It sets out who can apply for a guardianship order, what powers can be granted, how the court process works, and how guardians are supervised. All guardianship applications in Scotland are made under this Act.
Yes. A guardianship order is typically granted for a fixed period, most commonly three years. Before it expires, an application can be made to renew it. Where the underlying condition is permanent and progressive, such as dementia or a lifelong learning disability, orders are regularly renewed and the guardian continues to act for as long as necessary.
A guardianship order is appropriate where ongoing decision-making authority is needed over a period of time. An intervention order is a one-off order for a specific transaction or decision, such as ending a tenancy or managing a single financial matter. If only a single action is required, an intervention order may be more appropriate and quicker to obtain. A solicitor can advise which is right for your situation. Find out more about intervention orders.
Guardians in Scotland are supervised by the Office of the Public Guardian (Scotland). Financial guardians must submit annual accounts showing how the person's money has been managed. This oversight protects the person who lacks capacity and ensures guardians act in their best interests at all times.
Yes. Legal Aid is automatically available for welfare guardianship applications, meaning many families pay nothing at all for the legal costs. Legal Aid may also be available for financial guardianship applications subject to a financial assessment. The solicitor will confirm your eligibility at the first consultation before any work begins.