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What are the Duties of a Guardian in Scotland?

  • The Law Society of Scotland
  • The Law Society of Scotland
  • Legal Aid

A Guardianship Order is an order that allows a person, or several persons, to act on behalf of and make ongoing decisions for an adult with incapacity in order to safeguard their wellbeing and promote their interests. This may be where an adult has lost the capacity to make their own decisions as a result of a physical or mental illness. In this context, an adult is someone who is 16 or over but is unable to look after their affairs.

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. The main groups to benefit from the Act include people with learning difficulties, people who suffer from a severe mental illness and people with dementia.

What powers does a guardian have?

The powers that are conferred on an applicant by an Order are not set in stone and will be tailored depending on the individual in question. Each application for a Guardianship Order is assessed on a case by case basis and will be tailored to suit each individual. For example, a person with dementia may need assistance managing their finances whereas a person suffering from a severe brain injury may potentially need assistance with day to day welfare care as well as assistance with managing their finances.

A sheriff has the power to grant powers to an applicant that are very specific to the individual without capacity. However, there are some general powers that can be granted:

Financial Powers

  • pay all debts, liabilities and tax;
  • arrange to borrow money and take out credit cards;
  • take out investments to cover future care;
  • purchase property; and
  • operate and open any bank accounts and organise standing orders and direct debits.

Welfare Powers

  • decide on living arrangements (i.e. residential care or whether the individual can live on their own);
  • arrange medical and personal welfare appointments;
  • consent to (some) medical treatments;
  • make decisions relating to care (i.e. whether carers are required); or
  • make decisions relating to further education and work.

Being responsible for someone else’s livelihood and welfare is not a role which should be taken on without proper consideration. Although the duties of the guardian will vary depending on different circumstances, the one duty that is the same in every single situation is that the guardian must always act in the best interests of the adult in question.

If you are appointed as guardian than you are required to communicate this with all interested and necessary parties, i.e. family, friends, teachers and health professionals. If you are granted financial powers then you must ensure that the relevant banks and financial authorities are notified.

If you are appointed a financial guardian, the Office of the Public Guardian will assign you an individual caseworker who will check in with you every now and then to ensure that you are acting in the best interests of the individual and are carrying out your allocated duties effectively. They will also check that powers you were allocated under the Guardianship Order are still required.

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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Please note we are a firm of Scottish Solicitors helping clients across Scotland and cannot help you if you are based in England.