A tough decision? Explaining the Law of Guardianship Orders

In these cases, the person lacking capacity needs assistance, and an appointed individual, known as the ‘guardian’ assumes responsibility for making personal, health, and/or financial decisions on their behalf.

Distinguishing Guardianship from Power of Attorney can be difficult because both allow someone to act on behalf of another in financial and/or welfare matters.

The key distinction is that Power of Attorney is granted by an individual who is capable of understanding and articulating their wishes, whereas Guardianship is sought when a person cannot make independent decisions.

How does it work?

In Scotland, obtaining a Guardianship involves an application through the sheriff court, a process typically lasting six months to a year.

On the other hand, Power of Attorney is a document created and signed by the individual in the presence of a solicitor or doctor.

Guardianship has a fixed duration, although exceptional circumstances may lead to indefinite grants. In contrast, Power of Attorney remains in force until revoked by the individual or terminated for other reasons.

Guardianship is granted under specific circumstances where a person is incapable of making decisions, whether due to an illness, disability, or accident. Medical reports are required to prove incapacity, and in most cases a social worker will be appointed to give their view as to whether Guardianship is the best option for assisting the person in question.

Who can make a Guardianship Order?

A Guardianship Order is granted by a sheriff in the sheriff court, authorising a person, whether a close family member, friend, or professional, to act as guardian for the incapable person.

The sheriff will decide what powers should be granted, and this could include financial powers, property-related powers, personal welfare decisions, or a combination of these.

The process of obtaining a Guardianship Order usually begins with a consultation with a specialist solicitor, who will walk the individual through the necessary steps.

The solicitor prepares an application to the sheriff court, outlining the powers sought and the reasons for them, and supporting it with relevant background information.

Background reports are obtained to demonstrate the suitability of the proposed guardian. The solicitor represents the applicant at a court hearing, and if the application is granted, the solicitor advises on the next steps. If the application is challenged, a more in-depth court hearing known as a ‘proof’ may be needed.

Although close family members are typically the ones who apply for a Guardianship Order, anyone with a legitimate interest in the person’s life may do so. Joint guardians can be appointed if more than one person applies.

The court only grants a Guardianship Order if no other means are available to manage the individual’s affairs, prioritising the preservation of the

person’s rights.

Navigating Guardianship applications can be complicated, so seeking the advice of a solicitor who has experience with such cases is critical. A solicitor helps with the application process by representing the applicant in court to obtain the order.

At Gibson Kerr, our team of personal law solicitors specialises in guardianship cases, recognising the uniqueness of each situation and striving to simplify the process.

For inquiries about guardianship, power of attorney, or other aspects of personal law, contact our Personal

Law team at [email protected] or call 0131-202 7516.