If a person has lost capacity and no valid Power of Attorney exists, a court application may be required to appoint someone with the authority to make financial decisions.
This authority is usually granted through a guardianship order under the Adults with Incapacity (Scotland) Act 2000.
A financial guardianship order can allow a suitable person - often a family member - to manage financial affairs on behalf of the adult who lacks capacity. Depending on the powers granted by the court, this may include the authority to deal with property matters.
Situations where guardianship may be required include:
A parent or relative with dementia now lives in a care home
The family home needs to be sold to fund care costs
Banks or financial institutions require formal legal authority
No Power of Attorney was arranged before capacity was lost
Every case is different, and the exact powers required depend on the circumstances.
You can read more about the process here:
When a guardianship order is granted, the court appoints a guardian and specifies the legal powers they are allowed to exercise.
Where financial powers are granted, these may include authority to:
manage bank accounts and financial matters
deal with pensions or benefits
handle property or asset decisions
instruct professionals involved in property transactions
In situations where a house needs to be sold, the guardian’s powers must allow them to deal with the property on behalf of the adult who lacks capacity.
Because guardianship applications involve medical reports, legal documentation and court procedures, families usually work with a solicitor experienced in adult incapacity and guardianship law.
Guardianship is a formal court process and typically takes several months to complete. The exact timeframe depends on the complexity of the situation, the availability of required reports, and court schedules.
In some situations where urgent decisions are needed, a solicitor may advise on interim arrangements while the full application progresses.
Understanding the correct legal route early can help avoid delays and ensure property decisions are handled properly.
If you are dealing with a situation where a loved one with dementia owns property and you are unsure what legal authority is required, speaking with a solicitor experienced in adult incapacity matters can help clarify the next steps.
Our service exists to help people in Scotland connect with solicitors who regularly handle guardianship and adult incapacity cases.
We do not provide legal advice directly, but we can help you take the first step by introducing you to a solicitor with relevant experience.
If you need to discuss a situation involving dementia, property, or guardianship in Scotland, you can submit a confidential enquiry using our contact form.
Once submitted, your enquiry will be passed to a solicitor experienced in adult incapacity and guardianship law, who can discuss your circumstances and explain the options available.
We can also connect you with local solicitors in: