Guardianship

Guardianship is a court-sanctioned role that the court assigns to someone, when the person cannot make decisions for themselves due to a physical or mental impairment, or because they are a minor.

If the adult still retains capacity, a power of attorney should be sought instead of Guardianship.

What is a guardianship order?

Guardianship  is a court process that provides authority to someone (the guardian) to make decisions on behalf of an adult (the ward) who lacks capacity. The court order allows someone to make ongoing decisions on behalf of an adult with incapacity, such as paying bills, dealing with bank accounts or making decisions about care and personal welfare matters. It is also possible for the Sheriff to grant an intervention order to allow a one-off specific action to be completed.

The guardianship process can be lengthy and involves obtaining reports and court hearings. The court determines who will make decisions for the adult, the duration, and the type of decisions.

How long does it last?

A guardian is usually appointed for 3 years initially, but a Sheriff has discretion to make a shorter or longer appointment. An order ceases on the death of the adult.

Making an application

An application called a 'Summary Application' is made to the sheriff court. The application will require to be sent along with two medical reports (which are completed by two individual registered and licensed medical doctors) and other supporting documentation. Because of the complexity of the process most people use a solicitor to make the application to court.

Who can be a guardian?

 Anyone can apply including a partner, family member, friend or professional such as a solicitor, accountant or someone from  the person's local authority social work  department.

How much does it cost?

There are various costs involved, such as court fees for the application and there might be costs for the medical reports too. If you employ a solicitor to make a guardianship application there will be legal fees unless the case qualifies for legal aid. There is usually charge a fee to register the order once the application is granted. If you applying for financial powers fees may be charged throughout your appointment. There is a  fee exemption scheme for certain circumstances.

Further information on Guardianship can be found on the Office of the Public Guardian (Scotland) website (opens new window).