How do I obtain a guardianship order in Scotland

When a person lacks the capacity to make decisions for themselves, whether that is through illness, accident, or disability, the law provides for the appointment of a guardian who can act on their behalf. This is known as a guardianship order.

In Scotland, the Adults with Incapacity (Scotland) Act 2000 provides the framework for obtaining guardianship orders, which are intended to support vulnerable people and to protect their interests.
Before you pursue a guardianship order, it is crucial to understand its purpose and scope. A guardianship order grants legal authority to a person (the guardian) to make decisions in specific areas of an incapacitated adult’s life, such as their personal welfare or financial matters.

What’s the difference between guardianship and power of attorney?

Both guardianship and power of attorney are legal mechanisms that allow individuals to make decisions on behalf of someone else. However, there are significant differences between the two.

Power of attorney is typically granted by a person who has the mental capacity to do so. It allows them to appoint another person (the attorney) to make decisions on their behalf in specific matters, such as finances or healthcare. Power of attorney can be put in place for various reasons, including temporary absence, physical incapacity, convenience or simply a safeguard for the future and it can be tailored to the individual’s needs and wishes. However, if an individual does not have the mental capacity to be able to grant a power of attorney, it will be necessary for a family member or other interested party to apply for a guardianship order through the court, which will usually be granted for a period of between 3 and 5 years, but ultimately this is at the discretion of the sheriff who hears the case. Once granted, this will enable ongoing decision-making on behalf of the individual by the guardian.

Applying for guardianship

To initiate the guardianship process, the person’s capacity has to be thoroughly assessed to determine whether they are capable of understanding, retaining, and using information to make decisions. Assessments are required to be done by two medical professionals to support the application. These will usually be carried out by a General Practitioner and a Consultant Psychiatrist, who will provide detailed reports on the individual’s mental capacity. In addition, there will be a report carried out by a Mental Health Officer who will assess the suitability of the proposed guardian who wishes to be appointed.

In Scotland, the application for a guardianship order is made to the Sheriff Court. An Application for Guardianship is drafted, which provides detailed information about you, as the proposed guardian, the individual in need of guardianship and the powers being sought.

These documents will be supplied to the court, along with a fee, where applicable. In many cases, an applicant will qualify for legal aid to fund the costs associated with their application. The court may request additional information throughout the case and often a legal representative can be appointed to represent you at the guardianship hearing, so you will not usually require to attend the hearing personally.

Appointment of a guardian

If the court is satisfied that your guardianship is necessary and in the best interests of the individual, it will make the appointment, taking your suitability to take on the role into account.
The guardianship order gives you specific powers and responsibilities to make decisions on behalf of the incapacitated person, including providing annual reports to the Office of the Public Guardian (OPG) and complying with its regulations. The OPG oversees guardianships in Scotland and ensures that guardians act in the best interests of the individual they are representing.

Legal advice

Obtaining a guardianship order in Scotland can be a complex legal process so it is advisable to seek legal advice and guidance to ensure you are complying with the law and that you understand the specific requirements and responsibilities involved in the guardianship role. At McSherry Halliday, we can provide advice on guardianships and can guide you through the process.