Guardianships in Scotland: What Are They and When Are They Needed?

Life can be unpredictable and sometimes people need someone else to step in and make important decisions on their behalf. In Scotland, this is often done through a guardianship order. Guardianship is a formal legal arrangement that allows someone to make decisions for another person who can’t do so themselves. It applies to adults over the age of 16 who have no capacity or have lost capacity.

This guide explains what guardianships are, when they are needed, how they work, and what to expect from the process.

What Is a Guardianship?

A guardianship is a court order that gives one or more people (known as guardians) legal authority to make decisions for someone else who can’t manage their own affairs.

The main type of guardianship in Scotland is for people aged 16 and over who are unable to make or communicate decisions because of mental illness, learning disability, dementia, brain injury or another condition affecting their capacity.

When Is a Guardianship Needed?

A guardianship isn’t granted lightly – it’s used when there’s no other suitable way to protect someone’s welfare or finances. Common situations include:

Adults with dementia or learning difficulties – When a person can no longer manage money, pay bills, or make safe decisions about care or living arrangements.
Young people turning 16 with additional support needs – Once a child reaches 16, parents no longer have automatic legal rights to make decisions for them. A guardianship order allows parents or carers to continue supporting them legally.
Adults who’ve had a serious accident or illness – Sometimes a sudden medical event such as a stroke or brain injury leaves someone unable to make decisions, and guardianship becomes necessary to manage their affairs.

Types of Guardianship for Adults

Guardianship orders for adults can cover different areas depending on the person’s needs:

Welfare guardianship – Allows the guardian to make decisions about care, medical treatment, accommodation, and general wellbeing.
Financial guardianship – Gives authority to manage the person’s money, property, and bills.
Combined guardianship – Covers both welfare and financial matters, where both types of support are required.

The court will always limit the guardian’s powers to what is necessary for the person’s protection and wellbeing.

Who Can Be a Guardian?

Usually, guardians are close family members such as a spouse, parent, or adult child. However, friends or professionals (like a solicitor or accountant) can also act if there’s no suitable family member.

How to Apply for Guardianship

Applying for guardianship involves several steps and takes on average around eight to twelve months to complete:

Medical reports – Two doctors (one of whom must be a specialist such as a psychiatrist) need to confirm that the adult lacks capacity to make decisions.
Mental Health Officer report – The local authority require to allocate a Mental Health Officer to provide a report on the person’s circumstances and establish the Guardian is appropriate to take on the role of Guardian.
Court application – The application is submitted to the sheriff court, where the Sheriff will consider the application and make a decision on whether to grant the order and what powers the guardian will have.
Supervision – Once appointed, guardians are supervised by the Office of the Public Guardian (Scotland) or the local authority, depending on whether the powers are financial or welfare-related.

Duties and Responsibilities of a Guardian

Being a guardian carries serious legal and practical responsibilities:

Acting in the person’s best interests – Every decision must be made for the benefit of the adult or child, not the guardian.
Keeping proper records – Financial guardians must keep clear records of money spent and submit annual accounts to the Office of the Public Guardian.
Consulting others – Guardians should take into account the views of the person (where possible), their family, and professionals involved in their care.
Following the court order – Guardians can only make decisions within the limits set out in the court’s order.

Alternatives to Guardianship

Guardianship isn’t always necessary. Other options may be more suitable, such as:

Power of Attorney – If an adult still has capacity, they can grant a Power of Attorney to let someone make decisions for them in the future.
Intervention Order – If only one specific action (like selling a house or signing a contract) is needed, the court can grant an order for that single purpose.
Appointeeship – The Department for Work and Pensions can appoint someone to manage a person’s benefits if that’s the only financial help they need.

A solicitor can help assess whether guardianship is the right step, or if a simpler arrangement will do.

Getting Help and Advice

Guardianship is a major step, both legally and emotionally. It’s important to get clear advice and support from professionals who understand the process. A solicitor can help you:

Prepare the necessary court papers and reports.
Guide you through the requirements of the Adults with Incapacity (Scotland) Act 2000.
Explain your ongoing responsibilities as a guardian.
Liaise with social workers, doctors, and the court on your behalf.

Conclusion

Guardianships in Scotland play a vital role in protecting vulnerable people. Understanding when and how they apply can make the process less daunting and help families plan ahead.

If you’re unsure whether guardianship is needed, or you’re thinking of applying to become a guardian and you’d like guidance tailored to your own circumstances, we’re here to help. Contact our Court Department on 01324 622 888 or help@randa-fa.co.uk for expert advice on any aspect of guardianships in Scotland.