Who steps in when there is no family? Guardianship for isolated adults

In Scotland, the legal framework for supporting adults who lack capacity is governed by the Adults with Incapacity (Scotland) Act 2000. While many individuals plan ahead by granting a power of attorney, this is not always possible, particularly for isolated adults who may not have close family or friends to act on their behalf. In such cases, guardianship is a helpful legal safeguard to protect their welfare and financial interests.

What Is Guardianship?

Guardianship orders are granted by the court and authorise a named individual (or individuals) to make decisions on behalf of an adult who lacks capacity. These decisions may relate to: 

• Welfare matters, such as healthcare and living arrangements
• Property and financial affairs, including managing bank accounts and paying bills

An order is typically sought when an adult is unable to look after their own affairs by reason of a physical or mental illness and there is no power of attorney in place. Anyone with an interest in the adult’s welfare and/or property and financial affairs can apply to the court for the appointment of a guardian. The court will review the application and, where appropriate, confer decision-making powers on guardians. The scope of a guardianship order depends on the specific circumstances of the adult.

The Role of Local Authorities

For adults who do not have close family or friends to act as a guardian, local authorities have distinct responsibilities. Under the 2000 Act, local authorities have a duty to apply for a guardianship order where no guardianship application has been made or is likely to be made and it is necessary for the protection of the adult’s welfare or their property or financial affairs.

In circumstances where a welfare guardian is required and there is no suitable individual to act, the local authority’s Chief Social Work Officer shall act as welfare guardian.

The Chief Social Work Officer of the relevant local authority cannot act as financial guardian. In cases involving both welfare and financial matters, the Chief Social Work Officer may act as a joint guardian alongside another or others who will act as financial guardian(s).

Local authorities also have supervisory duties for welfare guardians appointed to act on behalf of adults in their area. For isolated adults, this oversight may involve working with independent advocacy workers to ensure the adult’s rights and interests are properly safeguarded.

The Responsibilities of Professional Guardians

Professional guardians may be appointed by the court or nominated by local authorities. This role is usually carried out by solicitors or accountants. A guardian must be a named individual; therefore, it is not suitable for a company to be appointed to act.

Professional guardians are subject to oversight by the Office of the Public Guardian, and are required to submit the following documentation:

• An inventory of estate: a detailed list of the adult’s assets.
• A management plan: outlining how the adult’s finances will be managed and how their daily needs will be met.
• Annual accounts: reporting how the adult’s assets have been used.

Ethical and Legal Considerations

Given the significant impact a guardianship order can have on an adult’s life, the principals of the Adults with Incapacity (Scotland) Act 2000 must be carefully considered at every stage of the process. Key considerations include:

• Least restrictive option: Guardianship should only be pursued when no less restrictive alternative (such as an intervention order) is suitable.
• Most benefit: In making decisions, guardians must consider what action will be of most benefit to the adult.
• Taking account of the adult’s views: Consideration of the adult’s past and present views is important to allow them to participate in the decision-making process as far as possible.
• Taking account of the feelings of others: Consideration should also be given to the views of those with an interest in the adult’s property, finances or welfare including the adult’s nearest relative and the adult’s carers in so far as that is possible.
• Encouraging new skills: Guardians should encourage the adult to exercise whatever skills they have as well as encourage them to develop new ones.

Our legal experts are experienced in making guardianship applications as well as in advising appointed guardians on the exercise of their duties. Should you require assistance in applying for a guardianship order, or advice as to who may act on your behalf should you lose capacity, please get in touch.