Welfare guardianships—Scotland
Produced in partnership with Dorothy Kellas of Gilson Gray
Welfare guardianships—Scotland

The following Private Client practice note produced in partnership with Dorothy Kellas of Gilson Gray provides comprehensive and up to date legal information covering:

  • Welfare guardianships—Scotland
  • General principles
  • Who may be appointed?
  • Components of the application
  • Powers and duties of a welfare guardian
  • Powers
  • Duties
  • Joint guardians
  • Ill treatment
  • Roles of the Mental Welfare Commission, Office of the Public Guardian and local authority
  • More...

In this Practice Note, an incapacitated adult is referred to as the ‘adult’.

For information on the legislative framework for guardianships, see Practice Note: Adults with Incapacity (Scotland) Act 2000. For information on making an application to appoint a guardian, see Practice Notes: Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process.

General principles

Any person to be appointed under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) must satisfy AI(S)A 2000, s 1, which is summarised as follows:

  1. the appointment must benefit the adult

  2. any intervention must be the least restrictive option in relation to the freedom of the adult

  3. account must be taken of the adult’s wishes, past and present

  4. so far as reasonable the views of relevant other parties must be taken into account

  5. the adult should be encouraged to exercise his or her skills wherever possible

Guardianships are dealt with under Part 5 of AI(S)A 2000 and are most suitable where long-term or ongoing assistance or management is required. It can be a useful way of putting informal arrangements on a proper footing, giving legal protection to both the adult and the person who has hitherto been informally assisting the adult. In some cases, such a step is a pre-requisite of decisions being made or transactions being properly authorised. However, for situations which are more ‘one-off’ in nature, an intervention order

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