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Welfare Guardianship

By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them.

Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care.

The welfare guardian might be a relative, friend or a carer. The court can also appoint the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000.

Local authorities have a duty under the Act to supervise all welfare guardians, and to visit the guardian and the adult at regular intervals.

Local authorities also have a duty to make an application for welfare guardianship where it is needed and nobody else is doing so.

We have a list of solicitors to support you to with Welfare Guardianship – contact us for further information.

Click on the links below for further details from the Office of the Public Guardian and Mental Welfare Commission.

https://www.mwcscot.org.uk/the-law/adults-with-incapacity-act/welfare-guardianship/

http://www.publicguardian-scotland.gov.uk/guardianship-orders

Financial Guardianship

The Adults with Incapacity (Scotland) Act 2000 introduced some new arrangements for making decisions and taking actions to safeguard the personal welfare, property and financial affairs of adults whose capacity to do so is impaired.

Part 6 of the Act allows for an application to be made to the court for:

  • An intervention order authorising a person to take action, or make a decision, of which the adult is incapable.
  • An order appointing a person or office holder as guardian in relation to the adult's property, financial affairs and personal welfare.
  • An order appointing a person or office holder in relation to a child who will become an adult (age 16) within three months, but such an order will not have effect until the person's 16th birthday.

Who can apply?

An application can be made to the court by any person, including the adult, claiming an interest in the property, financial affairs or personal welfare of the adult. The applicant will, however, require to satisfy the court as to their suitability to be appointed.

The local authority has a duty to apply where necessary and nobody else is doing so.

The Office of the Public Guardian provides information, advice and guidance about powers of attorney; access to funds; guardianship and intervention orders. It can investigate concerns where the property or financial affairs of an adult seem to be at risk. It also has supervisory duties in respect of financial guardianship and intervention orders.

The Mental Welfare Commission is only interested in financial powers where welfare powers have also been applied.

We have a list of solicitors to support you to with Financial Guardianship – contact us for further information.

Click on the links below for further details from the Office of the Public Guardian and Mental Welfare Commission.

https://www.mwcscot.org.uk/the-law/adults-with-incapacity-act/financial-guardianship/

http://www.publicguardian-scotland.gov.uk/guardianship-orders

DG Advocacy Service - Guardianship Booklet