When someone loses the capacity to make their own decisions and no Power of Attorney is in place, their family cannot simply step in. To manage that person’s money, property or care, you may need to apply for a Guardianship Order in Scotland through the sheriff court. It is a slower and more demanding process than a Power of Attorney, but it exists for exactly these situations, and legal aid is often available to help with the cost.
In a recent article, we explained why a Power of Attorney in Scotland should be put in place while you are still well. The reason is simple. Once capacity is lost, a Power of Attorney can no longer be granted. Life does not always give us that warning, though. A stroke, a serious accident, a rapid dementia diagnosis or a lifelong condition can leave a person unable to manage their affairs before anyone has had the chance to plan.
When that happens and no Power of Attorney exists, the family is left with a very different route. A Guardianship Order, granted by the sheriff court under the Adults with Incapacity (Scotland) Act 2000, is the legal mechanism that lets someone act for an adult who has lost capacity. This article explains what guardianship involves, how to apply, what it costs and how long it takes, and why acting early with a Power of Attorney remains by far the easier path.
What is an Adults with Incapacity guardianship order in Scotland?
A guardianship order is a court order made by the sheriff that gives a named person, the guardian, legal authority to make decisions on behalf of an adult who can no longer make those decisions for themselves. In Scotland, guardianship applies to anyone aged 16 or over who lacks capacity, whether through dementia, a learning disability, an acquired brain injury, severe mental illness or another condition.
The framework comes from the Adults with Incapacity (Scotland) Act 2000, the same legislation that governs Powers of Attorney. That Act is built on a set of guiding principles. Any intervention must benefit the adult, and it must be the least restrictive option that meets the need. As a result, the sheriff grants only the powers that are genuinely necessary, and no more.
It also helps to know the difference between a guardianship order and an intervention order. A guardianship order suits situations where ongoing decisions are needed over months or years. An intervention order, by contrast, is a one-off authority for a single action, such as selling a house or signing a particular document. Where only one decision is required, an intervention order is usually quicker and may be the better fit. You can read more about the options on mygov.scot.
When does a guardianship order become necessary?
A guardianship order becomes necessary when an adult has lost capacity and no Power of Attorney was put in place beforehand. Without either, family members have no automatic right to act. They cannot access the person’s bank account, deal with their pension, arrange the sale of a property to fund care, or in many cases make decisions about medical treatment and where the person lives.
This situation is more common than most people realise. The Scottish Government estimates that around 90,000 people in Scotland are living with dementia, a figure projected to rise significantly over the next two decades. Dementia is far from the only cause, though. A stroke or brain injury can remove capacity in an instant, and adults with a profound learning disability may never have had the capacity to grant a Power of Attorney in the first place.
In each of these cases, guardianship is often the only lawful way for a family to step in. If your relative still has capacity, however, the far simpler answer is to put a Power of Attorney in place now rather than face a court application later.
Where there is no valid Will, the estate is intestate. Nobody has been appointed to act, so the court must appoint an executor-dative instead, usually a close relative. The estate is then distributed according to the rules of intestacy under the Succession (Scotland) Act 1964, as amended by the Trusts and Succession (Scotland) Act 2024. Our article on what happens if you die without a Will in Scotland explains those rules in detail.
Intestate executry tends to take longer and cost more. There is an extra court step to appoint the executor, and in most cases a bond of caution (a form of insurance, explained below) is required before Confirmation can be granted.
Financial guardianship and welfare guardianship: what is the difference?
Just as with a Power of Attorney, guardianship in Scotland covers two distinct areas, and an order can grant one or both.
A welfare guardianship deals with personal matters. It can authorise the guardian to make decisions about medical treatment, care arrangements, daily routines and where the adult lives, including a move into residential care. Welfare powers can only ever be used once the adult has lost the capacity to make the relevant decision personally.
A financial guardianship deals with money and property. It allows the guardian to operate bank accounts, pay bills, deal with benefits and pensions, manage investments and, where authorised, sell property on the adult’s behalf.
Many families apply for both sets of powers together, which is often sensible where the adult needs help across the board. Even then, the sheriff grants only what is necessary and proportionate. If welfare powers alone would meet the need, financial powers are not added simply for convenience. This is the least restrictive principle in action, and it runs through every part of the guardianship process.
How to apply for a guardianship order in Scotland
To apply for a guardianship order in Scotland, you make a summary application to the sheriff court in the area where the adult lives. Most people instruct a solicitor to prepare and present the application, because it must be supported by specific reports and framed carefully around the powers being sought.
The application has to be accompanied by medical evidence. Two medical reports are required to confirm that the adult lacks capacity. Where welfare powers are sought, a further report is needed from a mental health officer, a specially trained social worker employed by the local authority, who assesses whether the order is appropriate and whether the proposed guardian is suitable. Gathering these reports is usually what takes the most time.
Once the reports are in place, your solicitor lodges the application at court and formally notifies the adult and other interested parties, such as close relatives. The sheriff then considers the application and, where appropriate, holds a hearing before deciding whether to grant the order and on what terms. If a decision is needed urgently, the court can grant interim powers to cover the position while the full application is dealt with.
When the order is granted, it is registered with the Office of the Public Guardian (Scotland), which issues the guardian with a certificate of appointment. Only then can the guardian begin to act. Our team can guide you through a guardianship application from the first conversation to the final registration.
How long does the process take and what does it cost?
Families are often anxious about both the time and the money involved, and it is right to be realistic. A guardianship application usually takes between three and six months from the first appointment to the order being granted. It can take longer if the medical or mental health officer’s reports are delayed, or if anyone opposes the order.
On cost, there are two possible routes. Without financial help, a guardianship application is a significant expense. Legal fees commonly run to several thousand pounds, and there are further costs for the medical reports and the Office of the Public Guardian’s registration fee, currently £110.
The better news is that civil legal aid is widely available for guardianship. For an application seeking welfare powers, or a combination of welfare and financial powers, legal aid is not assessed against the finances of either the adult or the proposed guardian, although the Scottish Legal Aid Board must still be satisfied that the application is justified. For applications seeking financial powers only, the adult’s own means are taken into account. Legal aid generally covers the court application, the reports and representation in court, though not the very first advice meeting. Because the rules can be involved, it is worth asking a solicitor early whether legal aid will cover your application.
Why a Power of Attorney is always preferable, and how to act while you still can
Set the two side by side and the contrast is stark. A Power of Attorney is a private document you sign while you are well. You choose who will act for you and exactly what they can do, the cost is modest, and once registered it is simply there when needed. A guardianship order is a court appointment made only after capacity has been lost. The process is slower, the paperwork heavier, and it is the sheriff, not you, who decides who is appointed and what powers they hold.
There is also the human dimension. A Power of Attorney lets you have the conversation on your own terms, choosing someone you trust completely. Guardianship removes that choice at the very moment your family is already coping with illness or crisis.
The lesson from every guardianship case we handle is the same. If you still have capacity, the kindest and simplest thing you can do for the people who love you is to make a Power of Attorney now. We explain more about why in our article on why you should not wait until it is too late. It takes one appointment, and it spares your family the court process entirely.
Why Choose Pomphreys?
Pomphreys has been looking after families across Wishaw, North Lanarkshire and the wider area since 1897. Guardianship work sits within our private client team, and we understand that families rarely come to us at an easy moment. Someone they love has lost capacity, and they need clear, calm guidance through an unfamiliar legal process.
We take the time to explain whether guardianship is the right route or whether a less restrictive option, such as an intervention order, would meet the need. We coordinate the medical and mental health officer’s reports, prepare and present the application, and deal with the registration once the order is granted. Where legal aid is available, we will tell you.Â
We also advise on the ongoing duties that come with being a guardian, so you know what is expected of you from the outset. You can see the full range of our personal legal services here.
If someone close to you has lost capacity and you are wondering what to do next, please get in touch. Call Pomphreys on 01698 373365 for a friendly, no-obligation conversation, or use our online contact form and we will get back to you promptly.
Frequently Asked Questions about guardianship orders in Scotland
What is the difference between a Power of Attorney and a Guardianship Order in Scotland?
The key difference is timing. A Power of Attorney is granted by someone who still has capacity, choosing in advance who will act for them if they lose it. A guardianship order is applied for after capacity has already been lost, when no Power of Attorney exists. A Power of Attorney is a private document that is quick and inexpensive to put in place. A guardianship order is a court process that takes several months and involves medical reports, a hearing and ongoing supervision. Wherever possible, a Power of Attorney is the better and easier option.
How long does it take to get a Guardianship Order in Scotland?
Most guardianship applications take between three and six months from the first appointment to the order being granted. The timescale depends largely on how quickly the required medical reports and the mental health officer’s report can be obtained, and on the court’s schedule. If the application is opposed by a family member or another interested party, it can take longer. In genuinely urgent situations, the court can grant interim powers so that essential decisions can be made while the full application proceeds.
Can I apply for a Guardianship Order for a parent already diagnosed with dementia?
Yes. A guardianship order is designed for exactly this situation. Unlike a Power of Attorney, which can only be granted while a person still understands what they are signing, a guardianship order is the route available once capacity has already been lost. A dementia diagnosis is one of the most common reasons families apply. The medical reports supporting the application will confirm the extent of your parent’s incapacity, and the court will decide what powers are needed to protect their welfare and finances.
Who supervises a guardian once an order is granted in Scotland?
It depends on the type of powers. Financial guardians are supervised by the Office of the Public Guardian (Scotland), which requires an inventory of the adult’s estate, a management plan and regular accounts showing how their money has been handled. Welfare guardians are supervised by the local authority, with the Mental Welfare Commission for Scotland providing an additional safeguard. This supervision protects the adult and supports the guardian in carrying out their duties properly.
This article is by Sarah Lynch
Sarah Lynch, Managing Partner
Sarah Lynch is the Managing Partner at Pomphreys. Sarah studied at Dundee University, achieving a 2:1 LLB Honours degree in Scots Law. She then moved back to Glasgow to study the Diploma in Legal Practice, being one of only a small number of students to be offered a funded position for academic excellence achieved during the LLB. Sarah then secured a traineeship concentrating on Personal Injury before deciding to broaden her scope of work to all civil litigation. We recently caught up with Sarah to discuss her role in Pomphreys.
Tel: 01698 373 365
Email: sl@pomphreyslaw.com
