Applying for a Guardianship Order for a vulnerable adult in Scotland

A Guardianship Order may be needed for an adult who is over the age of 16, or who is approaching the age of 16, and who cannot make decisions about their own affairs because of a medical reason. This might be for an adult who has never had capacity due to a lifelong disability, or for someone who has now lost their capacity without having made a Power of Attorney when they were still able to.

Guardianship is likely to be necessary if your loved one has an incapacity. A Guardianship Order allows decisions to be made on a loved one's behalf on an ongoing basis. The adult’s diagnosis, condition and circumstances will determine the extent of the powers that your loved one might need.

Anyone with an interest in the adult can apply to become their Guardian.  That might be a parent, a relative or a friend.  More than one person can apply for a joint Guardianship if that is in the best interests of the vulnerable adult.  You can also apply to have a Substitute Guardian appointed to take over immediately if the appointed guardian becomes unable to act.

Guardianship comes in two different forms. You might need only one or you might need both, depending on your loved ones circumstances.

Welfare Guardianship allows a Guardian to make decisions about the adult’s personal welfare and daily living arrangements. This might include making decisions about where they should live, what medication they should take, what care and support they might require, what medical treatment they should receive, what they should eat and whether they should be taken on holiday or not.

Financial Guardianship would allow for decision-making in relation to all of the adult’s financial affairs, including managing their income and savings for their benefit, dealing with their property and bank accounts and applying for benefits on their behalf.

To obtain a Guardianship Order, you have to apply to the Sheriff Court where your case will be heard by a single judge, known as a Sheriff.

Since the Sheriff acts as an impartial party to you and your loved one, they will rely on a number of expert reports before reaching a decision about your application.  We will help you to obtain the necessary reports.

Two medical reports are required confirming that your loved one does not have capacity and that they need a Guardian. That is because you cannot obtain a Guardianship Order for an individual who does have capacity and who is able to make their own decisions. The Sheriff also has to be satisfied that you are a suitable person to be named as a Guardian for the adult. 

To do this, our legal experts would ask a Mental Health Officer from the Local Authority to prepare a report for the benefit of the Sheriff. The Mental Health Officer will interview everyone who has an interest in your loved one and they will state in their report if they support your application for a Guardianship Order.

We will then prepare your application to the Sheriff Court and a Court Hearing will be arranged. Our Solicitors will guide you through this process from start to finish.

In almost all of our Guardianship cases, our clients do not have to attend Court and our Solicitors will do that for you. Ordinarily, it is sufficient for our Solicitors to attend Court on your behalf.

The length of the process varies depending on the Local Authority area that your loved one lives in. Each Local Authority has a waiting list for a Mental Health Officer and these vary by area. If your case is extremely urgent, we can help you with this and in certain circumstances we may be able to work with the Local Authority to speed the process up for you.

If your application to the Sheriff Court is successful, your Guardianship Order will be granted to you for a set period of time only. Ordinarily, you will be given a three-year Guardianship Order in the first instance. 

Thereafter, you need to apply to the Sheriff Court again to have the Guardianship renewed for a further period of time prior to the expiry date. The Sheriff might grant the Guardianship for a longer or shorter period of time depending on all of the circumstances of your loved ones case, and our Solicitors will be happy to discuss all of your options with you.

When a child who lacks capacity turns 16 years old, their parents or legal representatives can no longer automatically make decisions on their behalf. This is because anyone aged 16 or over is considered an adult. 

A Guardianship Order would then be needed to allow for continued decision making about the young person’s affairs.

Due to the likely length of time that it takes to actually obtain a Guardianship Order, you should seek legal advice from us at least twelve months before the child’s sixteenth birthday. 

Starting preparations early will reduce the overlap between the child turning 16 and the Guardianship actually being granted. During that time, it might be very difficult to make decisions for your loved one.

Read more on guardianships of children here.

We offer you a free, no obligation, initial discussion to discuss your options and to outline the likely costs of your case to you before you commit to beginning to apply for a Guardianship. Please just get in touch to speak to one of our Solicitors.

Every case is different, but the majority of cases which involve an application for Welfare Guardianship (whether on it’s own or together with Financial Guardianship) will qualify for Civil Legal Aid. 

We are happy to offer our clients Legal Aid to help them with the costs of applying for a Guardianship Order. There may be a fee to cover the costs of your Legal Aid application.  If this applies, we will provide a fixed fee quotation before you decide to proceed. 

Depending on financial circumstances, it might be possible to have that fee covered by Legal Aid in addition. If Civil Legal Aid is granted to you, that would cover the remaining of your legal fees as well as any disbursements that your case would incur, such as medical report fees and Sheriff Court charges.

Certain other cases do not qualify for Legal Aid and our Solicitors can discuss this with you when you get in touch.