Under the Adults with Incapacity (Scotland) Act (AWI) an application for Guardianship can be made to the Sheriff Court.
A designated Mental Health Officer is responsible for submitting Guardianship applications to the Sheriff Court. Each application must be accompanied by Medical Reports made by two doctors, who are qualified to assess capacity i.e. a Psychiatrist and a General Practitioner.
The court may grant legal authority to a significant other/others (i.e. the Guardians) to make decisions on behalf of the person who is deemed to lack capacity This authority provides Guardians with power to make decisions regarding the person’s welfare, financial matters and/or property. Local Authorities have a duty under the Act to supervise appointed Guardians.
Welfare Guardianship refers to decisions concerning:
- Where the person resides.
- The level of care and support they may require.
- Medical/surgical treatment.
The Financial Guardian will be responsible for decision making with regard to the person’s finances and property.
If a relative or close friend is unable to take on the role of Guardian, or does not wish to do so, then the Local Authority may apply to take on this responsibility.
The Office of the Public Guardian in Scotland was created when the Adults with Incapacity (Scotland) Act 2000 became law. Its duties are:
- To maintain a public register of Powers of Attorney, Guardianship and Intervention Orders granted.
- To register Powers of Attorney which are to begin or continue in the event of an adult being deemed to lack capacity.
- To supervise Guardians appointed to manage the financial and property affairs of the person who lacks capacity.
- To investigate circumstances where the property or finances belonging to the person appear to be at risk.
Click on the links below for guidance regarding capacity assessment:
Capacity Assessment for Welfare Matters
Capacity Assessment for Financial Matters