Caring for Adults - Guardianship Orders Legal Advice in Scotland

If an unfortunate event occurs, such as an accident or illness, that results in an adult losing capacity, Guardianship Orders exist to allow a person with an interest in that adult to make decisions on their behalf.

Guardianship Orders grant wider powers than Intervention Orders. Guardianship Orders allow you to look after the individuals affairs on an ongoing bases. Guardianship orders can cover both financial and welfare powers or a combination of the two. Also, more than one guardian can be nominated, which allows responsibilities to be shared. If you need assistance with a Guardianship Order, please get in touch with our specialist wills and executry lawyers today. 

Guardianship Orders are governed by the Adults with Incapacity (Scotland) Act 2000 – a piece of legislation that created a number of measures to help individuals who are incapable of making decisions themselves relating to their financial affairs and welfare.

The Office of the Public Guardian, which was set up by the 2000 Act to carry out certain important functions, recommends those considering applying for a Guardianship Order seek legal advice before doing so. The family law experts at Macnairs + Wilson can advise you on whether a Guardianship Order is the most appropriate and beneficial option based on the circumstances. 

The procedure for obtaining these orders is complex and time consuming. Please seek legal advice before making an application.

Guiding principles

The 2000 Act set out a number of overarching principles that must be followed when considering any intervention in the affairs of an adult.

• The Guardianship Order must benefit the adult. The applicant must also consider whether that benefit could be reasonably achieved by some other means.
• The Order must be the least restrictive option; it should only limit the adult’s freedom as far as necessary.
• The adult’s wishes, both past and present, must be taken into account when deciding whether the Guardianship Order should be granted.
• The opinions of other parties who have an interest in the adult should be considered. These people include the adult’s nearest relative, primary carer and solicitor.

Applicants

Anybody with an interest in the adult can apply for a Guardianship Order. In most cases this will be a relative, but may also be a friend, carer or a professional (such as a lawyer). Additionally, the local authority’s Chief Social Work Officer may seek a Guardianship Order if there’s no one else able to apply. 

More than one person can be appointed a guardian, but joint guardianship is usually only granted by the court to two or more family members. 

Types of Guardianship Orders

Applicants should state which area of the adult’s affairs they wish to be granted authority for: financial, welfare or both. Guardianship Orders can confer general or specific powers. General powers within the financial area include borrowing money, paying bills and managing bank accounts. For personal welfare, they include decisions about accommodation, care services and medical treatments.

The Application Process

The Guardianship Order application process is long and complex, with various stages and documents required, that’s why it’s important to obtain advice and support from experienced family law solicitors. The process is as follows:

1. Inform the council of your intentions to become the adult’s guardian.
2. The local authority’s appointed Mental Health Officer will conduct an assessment of the adult, and of your suitability as a guardian. The Officer will prepare three reports for the sheriff court (two medical reports assessing capacity and one suitability report).
3. The summary application should then be prepared, including details of the powers requested (financial, welfare or both), the relationship between the applicant and the adult and details on the adult’s situation. The application will then be lodged with the sheriff clerk, along with the three local authority reports.
4. The Sheriff will notify any relatives, and anyone else who has an interest in the adult’s welfare, of the application and provide them with details about their opportunity to make objections.
5. A hearing will be held in private, which you will have the option to attend, and the Sheriff will come to a decision on whether to grant the Order or not.

Conditions

If the Order is granted, the Sheriff may add certain terms, for example a time limit may be applied that differs from the standard duration of three years. Further, the Sheriff may decide to set caution on the Order – a type of insurance that protects the adult against any financial loss arising from the guardian’s mishandling of their affairs.

Next steps

After a Guardianship Order is granted, the Public Guardian will be sent a copy of the decision in order to formally register it. The Public Guardian will alert the local authority and the guardian once the order is registered, and will issue a certificate of appointment to the guardian. It’s then the guardian’s responsibility to notify the relevant parties, including family members and care providers. 

Financial guardians will be assigned a case worker by the Public Guardian, who will provide ongoing advice and ensure the guardian is carrying out their duties appropriately. Financial guardians have specific responsibilities, for example they must supply the Public Guardian with annual accounts.

Welfare guardians are supported by the Mental Welfare Commission. The Commission may visit welfare guardians to make sure they’re doing their best for the adult. It also investigates and deals with any complaints made about the guardian. A Mental Health Officer from the local authority will also visit the guardian periodically to assess their management of the adult’s affairs.

Guardianship Order Solicitors Paisley & Glasgow, Scotland

We understand that it’s upsetting and confusing when someone close to you is no longer able to make important decisions. At Macnairs + Wilson we combine our wealth of experience in applying for Guardianship Orders with a personal service to ensure that the best interests of your loved ones are protected.

The Guardianship Order application procedure is complicated and can take anywhere between six months and a year to complete. Our expert family law solicitors will make the process as straightforward as possible. We’ll provide advice on how Orders work and details of your responsibilities as a guardian, we’ll support you throughout – from obtaining the required reports to attending the hearing – and we’ll give you regular updates on the progress of your application.

If you’d like to discuss your circumstances and the possibility of applying for a Guardianship Order, call us on 0141 887 5181 for our Paisley branch, 0141 551 8185 for our Glasgow branch or write to use via our online contact form.