Guardianship

This advice applies in Scotland only.

Guardianship safeguards vulnerable people who are 16 or over but lack the capacity to make decisions or take action for themselves. It lets others take decisions on their behalf, subject to safeguards specified when the guardians are appointed.

What is guardianship?

Guardianship safeguards vulnerable people who are 16 or over but lack the capacity to make decisions or take action for themselves.

It lets others take decisions on their behalf, subject to safeguards specified when the guardians are appointed.

Guardianship can be granted either for health and welfare, or finance, or both.

Who can apply and what are their duties?

Anyone with an interest in the adult can become a guardian, e.g. parent/carer, local authority officer or other professional. More than one guardian can be appointed.

Precise duties are defined by the Sheriff when the order is granted. They may include administrative duties around someone’s finances and property, for example preparing a management plan, keeping records, and submitting annual accounts.

Before a guardianship order ends, the guardian should prepare a renewal application if powers are still needed.
Financial guardians are supervised by the Office of the Public Guardian (Scotland). Welfare guardians are supervised by the relevant local authority.

All guardians should stick to the General Principles.

How do you apply?

• Appoint a solicitor, with experience of the law as it applies to people with additional support needs.
• Be clear about fees before the solicitors begin to act for you. Don’t be afraid to ask questions, and be prepared to shop around as the process can be costly.
• You can find a solicitor who can apply for Legal Aid. This is likely to be awarded regardless of any savings, if you are applying for welfare powers.
• With the solicitor, identify the professionals who will submit reports to support your application to the Sheriff Court. You will need two medical reports certifying the person’s incapacity. You will also need further professional reports, depending on the powers requested. These could include input from a local authority mental health officer, and/or professionals qualified to comment on financial aspects that may be part of the application. The reports must have been prepared no more than 30 days before applying, including any interviews or examinations that may be necessary. In practice, there may be some flexibility around the 30-day rule, but this is at the Sheriff’s discretion.
• If deadlines aren’t met, the process may have to begin again.
• Submit the application. It needs a court hearing before the Sheriff, who decides if guardianship is the best way to meet the person’s needs, if the proposed guardians are suitable, and how long the guardianship order should last (typically 3 years, but it may be longer or shorter).

When should you apply?

For the order to be effective immediately on reaching 16, you should apply 3 months before the 16th birthday.
You don’t have to apply before someone reaches 16, but after this you will have no legal right to act for them until an order is in place.

Bear in mind preparing the application can take a long time, especially if you apply for Legal Aid.

Case study

Guardianship – a parent’s experience

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