Legal Guides

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Care of the Elderly – Guardianship Orders in Scotland

It is well known that the UK has an ageing population. The most recent statistics from Age UK revealed that there are now 23 million people over the age of 50 in the UK, (one-third of the UK population). By the year 2040, it is predicted that one-quarter of the UK population will be over 65 and that one-fifth of the UK’s current population will see their hundredth birthday.

With the UK’s population steadily ageing, issues surrounding the care of older people have become more important than ever. More and more people are arranging Powers of Attorney to allow someone to act on their behalf if they become unable to look after their affairs as a result of ageing or illness.

However, in many cases, a serious condition such as a stroke or Alzheimer’s will strike suddenly, making it too late for a Power of Attorney to be granted.

When someone has lost the capacity to look after their affairs, a Guardianship Order can be applied for. This is a court order that gives a guardian the authority to act on the behalf of someone who has lost capacity.

Who Can Make a Guardianship Application?

Anyone who has an interest in the adult who has lost capacity can apply for guardianship. In most cases, this will be a close relative, but it could also be made by a carer or friend of the adult.

Before a Guardianship Order can be granted, the court must be satisfied with a number of matters. The Order must be appropriate for the adult’s needs and must be of benefit to the adult’s well-being.

Most importantly, the court must be satisfied that the adult who is the subject of the Order does not have the capacity to care for themselves. Medical reports and a suitability report from the local authority must be submitted to confirm that the adult lacks capacity. The Adults with Incapacity (Scotland) Act 2000 explains that someone who ‘lacks capacity’ is incapable of:

  • acting on decisions; or
  • making decisions; or
  • communicating decisions; or
  • understanding decisions; or
  • retaining the memory of decisions.

How Do You Make an Application for Guardianship?

Most people will make a Guardianship Order application with the help of a solicitor. As several reports must be submitted within a strict timeframe, it is often best to have these matters handled by an experienced lawyer. The application will be made in the Sheriff Court that is local to the adult.

Guardianship Order Powers

The powers that are given by a Guardianship Order will depend on the circumstances, needs and requirements of the adult who has lost capacity. The powers may be over financial matters, welfare matters or a combination of both.

These powers will usually be granted for a three year period but in some cases may be granted to last the lifetime of the adult.

Family Law Glasgow

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Family Law Glasgow directly.

Published on 28th April 2016
(Last updated 7th May 2021)