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How to Apply for Guardianship in Scotland

  • The Law Society of Scotland
  • Legal Aid
0141 620 0800 Existing Clients call: 0141 620 0800

Guardianship Orders appoint an individual to make ongoing decisions on behalf of an adult with incapacity who is unable to make decisions about their financial and/or welfare matters themselves. We understand that ensuring that you have the power to look after a loved one who is unable to look after themselves can be a stressful experience. We aim to make that experience as straightforward and stress-free as possible. If we think a Guardianship Order is the best course of action for you and your loved one, we will ensure you are fully supported in the legal process.

The law concerning Guardianship Orders is mainly contained within the Adults with Incapacity (Scotland) Act 2000 (“the Act”) and outlines that a Guardianship Order can give the power to deal with financial and welfare matters on behalf of the individual. However, it is crucial that the Guardianship Order would not restrict the individual’s freedom any more than is necessary. The Act is designed to safeguard the needs and interests of those who are unable to make decisions for themselves in their day to day lives.

Who can apply for a Guardianship Order and what should you think about before applying?

Generally, a family member or a friend will apply to their local sheriff court to become a welfare and/or financial guardian. This will be the sheriff court in the domicile of the adult who has lost capacity. Occasionally someone acting in a professional capacity will apply to be appointed where there is no one else more suited, e.g. a solicitor or accountant. However, where this is not feasible, the local authority can apply to be appointed a guardian.

Before an order is granted, it must be clear that it would be in the individual’s best interests. Before you apply you must consider:

  • if the individual’s wishes have been taken into account in the decision-making process;
  • if the individual can no longer make decisions on their own to manage their financial affairs or personal welfare; and
  • if the individual is unable to give consent to any care that they may require.

You must also consider what powers you will need under the Guardianship Order. These are categorised as welfare and financial decisions.

What is the Guardianship Order application process?

Applying for a Guardianship Order can be complex and so it is highly recommended that you seek legal advice before doing so. Here at Claphams, our Guardianship Order Solicitors have extensive experience in dealing with guardianship issues and would be delighted to help you through what can be a complicated process with our personal and compassionate service tailored to your needs.

What are the application stages?

  • The applicant must lodge what is known as a Summary Application with the court. This will contain details of the requested powers. The applicant must lodge three different reports along with the application to be examined by the court. The reports relate to the individual’s capacity and the suitability of the powers that are requested, relative to the individual in question. The applicant must also be interviewed to gauge whether they would be suitable as a guardian.
  • There is a brief period for anyone who has an interest in the welfare of the individual to object to the application.
  • A hearing will then take place in closed court where the sheriff will decide whether to grant the order. The sheriff has the discretion to put a time limit on the length of the order; however, the default position tends to be three years.

If an order is granted, it will be communicated to the Office of the Public Guardian. Although the sheriff will grant a time limit, the order will always be subject to review and can be recalled at any time.

What is the difference between a Guardianship Order and a Power of Attorney?

A Guardianship Order and Power of Attorney grant the same legal authority, allowing a person to make important welfare and/or financial decisions on behalf of someone else. The differences lie in when these measures are applied for and how, and how long they last.

A Guardianship Order is applied for by a relative or other trusted person on behalf of someone after they have lost capacity, whereas a Power of Attorney allows an individual with full capacity to appoint another person to make decisions for them in the future in case they lose capacity. 

Guardianship Orders are applied for through the courts, while a solicitor will draw up a Power of Attorney.

Guardianship Orders usually last for a fixed period, whereas a Power of Attorney will continue unless the person granting the authority revokes it or dies. 

Expert Guardianship Lawyers Clarkston, Newton Mearns, Giffnock, Netherlee, Eaglesham, Carmunnock, Stewarton & Southside Glasgow

Our approach is compassionate and personal. We’re here to listen to your needs and to help you create a plan that places your loved one’s interests at the forefront. Contact Claphams today on 0141 620 0800 or fill out our online enquiry form if you are in Clarkston, Newton Mearns, Giffnock, Netherlee or the surrounding areas.

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