This is the question almost every family asks first and it is understandable. But in Scotland, being a next of kin gives you no automatic legal authority to manage someone's finances, make decisions about their care, or deal with their property.
Unlike some other countries, Scotland does not recognise next of kin as a legal decision-maker for adults who lack capacity. The only two routes to legal authority are:
If no Power of Attorney was put in place in time, a Guardianship Order is the only legal route available to you in Scotland.
A Guardianship Order is a formal court order, granted by a Scottish Sheriff Court, that gives a named person, usually a family member, the legal authority to make decisions for someone who has lost mental capacity.
It is governed by the Adults with Incapacity (Scotland) Act 2000 and can cover:
Once granted, a Guardianship Order means you have the same legal standing as if a Power of Attorney had been in place. You can deal with banks, local authorities, care providers, solicitors, and anyone else without being turned away.
Once granted, a Guardianship Order gives you full legal authority across these areas
This is one of the most common questions families ask, usually because the situation is already urgent.
A standard Guardianship Order application in Scotland typically takes 3 to 6 months from instructing a solicitor to the order being granted by the Sheriff Court.
The process involves:
If the situation is urgent, for example if care fees are building up and a property sale cannot wait, there is an option to apply for an Interim Guardianship Order, which can be granted more quickly while the full application is processed. A specialist solicitor can advise whether this applies to your situation.
In Scotland, Legal Aid is automatically available for welfare guardianship applications, meaning the legal costs of obtaining a welfare order are covered without a means test. Legal Aid may also be available for financial guardianship applications, subject to a financial assessment of the adult's income and capital.
This means many families pay little or nothing for the legal process of obtaining a Guardianship Order.
Where Legal Aid does not apply, total costs, including solicitor fees, medical report costs, and court costs, typically fall in the range of £1,500 to £3,000 or more, depending on the complexity of the case. In many cases, costs can be paid from the person's own estate once financial guardianship is in place.
The solicitors we work with can confirm your Legal Aid eligibility at your first consultation, before you commit to anything.
If your loved one no longer has the mental capacity to understand and agree to a Power of Attorney, then yes, it is too late to set one up. A Power of Attorney can only be created while a person has legal capacity. However, this does not mean you are without options. A Guardianship Order from the Sheriff Court achieves the same outcome and does not require the person's consent.
No. Scottish banks are required to protect their customers' money and will not allow anyone, including a next of kin or spouse, to access an account without either a valid Power of Attorney or a Guardianship Order in place. Some banks have a small allowance for funeral expenses, but for general access to funds, you will need a legal order.
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 once appointed. All guardianship applications in Scotland are made under this Act.
Anyone can apply for a Guardianship Order. You do not have to be legally qualified. However, the application involves court documents, medical reports, and a formal hearing at the Sheriff Court. In practice, almost all families use a solicitor to prepare and submit the application. Errors or omissions can cause significant delays, so professional help is strongly recommended.
Capacity in Scotland is assessed decision by decision. A person may retain the ability to make some decisions, such as what to eat or where to go, while lacking capacity for others, such as managing finances or consenting to medical treatment. If your parent retains sufficient capacity to sign a Power of Attorney, that route may still be available. A solicitor can assess this quickly. If they no longer have that capacity, a Guardianship Order is the appropriate route.
Guardians in Scotland are supervised by the Office of the Public Guardian (Scotland), an independent public body. Financial guardians must submit annual accounts showing how the person's money has been managed. This oversight exists to protect the person who has lost capacity and ensures that guardians act in their best interests at all times.
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. Your solicitor will advise on renewal well in advance of the expiry date.
We work with specialist AWI solicitors across Scotland. Select your city to find out more:
Adult Guardianship Solicitor Glasgow | Adult Guardianship Solicitor Edinburgh