Unlock the Law have prepared this helpful guide on Guardianship Orders to give you some useful information about the application process, cost and responsibilities that come with being someone’s legal guardian. Fill out our online enquiry form or call 0808 274 9851 to get the support you need to make a Guardianship Order application.
A Guardianship Order is a court order that gives one person (or more than one person) the ability to act on the behalf of an adult does not have the capacity to make decisions for themselves. If a Power of Attorney was not already in place, then a Guardianship Order can be applied for. An Intervention Order relates to only one particular legal act, such as the sale of the house, while a Guardianship Order gives much more general and continuing powers.
When an adult does not have the ability to make decisions for themselves, they are described in law as ‘lacking capacity.’ Someone may lose capacity through ageing or a disorder that develops over time, such as dementia. Capacity can be lost suddenly as the result of a medical condition such as a heart attack or a stroke.
An adult is someone over the age of 16 in Scotland. An application for a Guardianship Order can be submitted three months before the child’s 16th birthday, but the order would not come into force until they turn 16.
There are different guardianship powers available, depending on the needs of the adult who has lost capacity. A Guardianship Order can contain one or both of these powers:
In practice, a guardian will most commonly be a close relative of the adult who has lost capacity, such as their parent, child or spouse. However, anyone who has an interest in an adult with capacity can apply to be made their guardian including distant relatives, friends, carers or professionals such as solicitors.
You can apply to have more than one guardian or substitute guardians appointed.
There are certain duties and responsibilities associated with being someone’s guardian. The duties will depend on the powers that have been conferred by the Guardianship Order and you can find more information from the Office of the Public Guardian.
The local authority supervises welfare guardians and financial guardianship powers are overseen by the Office of the Public Guardian.
Guardianship Order applications are automatically granted legal aid by the Scottish Legal Aid Board. Legal aid may also be available for the legal costs involved with getting a Guardianship Order started.
Guardianship Order applications are made in the Sheriff Court closest to the adult who has lost capacity.
There are 39 Sheriff Courts in Scotland. The main Sheriff Courts in the central belt are Glasgow, Edinburgh, Perth, Airdrie, Paisley, Dumbarton, Greenock, Kilmarnock, Hamilton and Lanark.
Adults living in the South of Scotland could have their application processed at the Sheriff Court in Jedburgh, Dumfries or Selkirk.
In the North of Scotland, the closest Sheriff Court may be Aberdeen, Banff, Elgin, Fort William, Inverness, Kirkwall, Peterhead, Portree or Stornoway.
In Fife and surrounding areas, a Guardianship Order application could be handled at Dundee, Dunfermline, Falkirk, Forfar, Kirkcaldy, Perth or Stirling Sheriff Court.
The Sheriff must be convinced that the order will benefit the adult who has lost capacity and that it is appropriate under the circumstances.
Unlock the Law recommend www.familylawglasgow.com for people living in the central belt of Scotland. You can view their Guardianship Order page here. Fill out our online enquiry form or call 0808 274 9851 today to be put in contact with a Guardianship Order lawyer near you.