A Guardianship order is a court order which gives a person the authority to act on behalf of an Adult with incapacity. This is an Adult over the age 16 who, for reason of mental illness or disability, is incapable of acting or making decisions for themselves. Such an order is appropriate when decisions regarding an adult with incapacity need to be made on an on-going basis.

An order will only be granted where it can be demonstrated that the powers sought would be of benefit to the Adult with incapacity. It must be shown that there would be no other reasonable way of achieving that benefit for them. The Adults with Incapacity legislation which governs guardianship orders is guided by the “minimum intervention principle”. This means that the orders sought should not restrict the adult’s freedom any more than is necessary.

A guardianship order can be sought by anyone who has an interest in the Adult. This covers not only family members but also friends of the adult. Guardianship can be applied for by more than one person as joint guardians. This can be useful as it allows tasks to be shared among, for example, different family members.
The person who is seeking a guardianship order will require to make an application to the Sheriff Court which is local to the area in which the Adult lives. A person can seek either a Welfare Guardianship, which will give them certain powers to make decisions in relation to the Adult’s personal welfare including medical decisions and arrangements for their personal care; a Financial Guardianship which will give them certain powers over the Adult’s finances, such as giving access to bank accounts and the power to make decisions regarding their property; or they can apply for both a Welfare and Financial Guardianship together.

The Sheriff will decide on the length of the order after considering the condition and circumstances of the adult. It is common for an order to be granted for three years however this time period may be extended if this is deemed to be in the Adult’s interests.
The process of obtaining a guardianship order in Scotland can often be complex. It can take a number of months for this to be finalised. It is advisable that the help of a solicitor is sought.  Civil legal aid can be available for obtaining a guardianship order. This is automatically available where welfare powers are sought. It may also be available if only financial guardianship is sought however this will be subject to a financial assessment based on the Adult’s income and capital. Livingstone Brown have extensive experience in applying for guardianship orders and are able to ensure that the process is as simple as it can be. We will provide advice and guidance from the beginning of the process in relation to funding, through to finalising the orders sought. Simply arrange an appointment with one of our solicitors to discuss matters further.  

To find out more, contact Livingstone Brown's Private Client department today.  Call 0141 433 8310 and ask to speak to Samantha Baird, or email