Guardianship, intervention orders and powers of attorney in Scotland
This advice applies in Scotland only.
If you are the parent or carer of someone over 16, who needs help to make, communicate or carry out decisions, there are three ways to ensure you can act for them if necessary.
In this article
Introduction
Under Scottish law, a young person becomes an adult on their 16th birthday. That means families no longer have the legal right to take decisions or act on a young person’s behalf – even if they believe the young person doesn’t fully understand their situation or can’t reliably communicate their wishes.
There may be many situations where parents and carers might want to keep doing this. Here are a few:
- If someone has to go into hospital, especially in an emergency.
- To help manage finances, benefits and bank accounts.
- To make sure the right support is in place.
- If someone needs to set up contracts and agreements, e.g. rent, insurance, gas and electricity.
If you are the parent or carer of someone over 16, who needs help to make, communicate or carry out decisions, there are three ways to ensure you can act for them if necessary:
It’s important to know the differences between them and which is right for you.
What are the differences?
| Guardianship | Powers of Attorney | Intervention orders | |
|---|---|---|---|
| How long does it last? | Decided by the Sheriff Court. Has to be renewed or reconsidered later as directed. | Indefinite. For as long as the person granting it wants it to. | Ends when the action it is granted for is completed. |
| Who grants it? | Sheriff. | The individual themselves. | Sheriff. |
| Cost | Can be high, though Legal Aid may be available. | Much cheaper than guardianship application. | Same as for guardianship. |
| What does it allow you to do? | Make decisions in someone’s best interests and act for them. | Act for/on behalf of someone, to communicate or carry out their wishes where necessary. | Make a specific decision or carry out a one-off task. |
| What does it cover? | Two categories of powers: health and welfare, and property and finances. | Continuing Attorney covers property and financial affairs. Welfare Attorney covers care arrangements and health issues. | As for guardianship, but for specific one-off tasks or decisions. |
| Who needs it? | Someone doctors decide is “incapable” according to the definition in the Adults with Incapacity (Scotland) Act 2000, and therefore unable to grant Powers of Attorney. | Anyone – with or without a disability – who may need support now or in the future to manage their affairs or communicate their wishes. | As for guardianship. |
| How do you set it up? | Apply through a solicitor to the Sheriff Court. Requires medical and other reports to confirm incapacity and advise on appropriate powers. | The person has to do this themselves. A solicitor draws up draft documents that can be amended to meet someone’s needs. They need to be registered with the Office of the Public Guardian. | As for guardianship. |
| When do you set it up? | When someone doesn’t have capacity. | Must be while someone still has capacity. | When someone doesn’t have capacity. |
| Who can be a guardian, attorney or intervener? | Anyone can apply to be a guardian. The Sheriff decides whether an application is suitable or not. | Anyone the person chooses, so long as they are over 16. | As for guardianship. |
| How many can you have? | Usually one or two, but the Sheriff decides. | As many as you like. | As for guardianship. |
| How long does it take? | In practice it can take over a year to appoint guardians. Advice is to apply 3 months before required. | Usually a few weeks to be prepared and signed, but several months to register unless there is a real need for urgency. | As for guardianship. |
Incapacity and what it means
Many people are uncomfortable with the word “incapacity”, but this is the legal term used to indicate someone can’t make decisions for themselves or take action on their own behalf.
Under the Adults with Incapacity (Scotland) Act 2000, the Sheriff has to be satisfied that is the case before appointing a guardian or guardians.
The Act works on the basis that the law should intervene to the least extent needed to safeguard someone. That means someone may have capacity according to the legal definition, even if they need support to manage their affairs or communicate decisions. If the Sheriff believes they have capacity, guardianship will not be granted.
Under the Act, someone has “incapacity” if they:
- can’t take action for themselves
- can’t make, communicate, understand or remember decisions
- have a mental disorder, or an inability to communicate because of physical disability
General Principles
The Adults with Incapacity (Scotland) Act 2000 defines the principles all guardians, attorneys and intervenors should follow. They must:
- Ensure actions are necessary and beneficial to the person’s wellbeing and/or finances.
- Make sure actions are the minimum needed to achieve the purpose (least restrictive to the person).
- Take into account present and past wishes, and do everything possible to determine these.
- Consult relevant others (e.g. other guardians, nearest relatives).
- Encourage the person to develop skills that will reduce dependency on a guardian.
Related information
Guardianship
Guardianship safeguards vulnerable people who are 16 or over but lack the capacity to make decisions or take action for themselves. It…
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Powers of attorney in Scotland
Powers of attorney enable you to support someone who has the capacity as defined in the Adults with Incapacity (Scotland) Act 2000….
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Intervention orders
An intervention order allows someone to make one-off or specific decisions, e.g. selling a house or deciding on the best medical treatment…
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Talking about Tomorrow
The key topics to think about as your child moves into adulthood.
