Guardianship Order in Scotland: Process, Costs and Legal Aid for Dementia

When a parent with dementia did not put a Power of Attorney in place before losing capacity, guardianship is the remaining legal route. It is more expensive, slower, and more intrusive than a PoA — but it may be the only way to gain the legal authority to make financial and welfare decisions on your parent's behalf.

Guardianship in Scotland operates under the Adults with Incapacity (Scotland) Act 2000.

Types of Guardianship

Welfare Guardianship gives authority over personal welfare decisions: medical treatment, where your parent lives, daily care arrangements. This is the type most families need when a parent with dementia requires a care home placement but cannot consent to the move.

Financial Guardianship gives authority to manage your parent's finances — bank accounts, property, pensions, and bills. This is needed when the parent has significant assets and no PoA is in place.

Combined Guardianship covers both welfare and financial powers. Most families apply for a combined order to avoid having to go through the court process twice.

The Application Process

You apply through a Summary Application to your local Sheriff Court. This is a court-led procedure that requires legal representation and a hearing before a Sheriff. Three professional reports must be completed within 30 days of lodging the application:

1. First Medical Report (Form AWI 1): completed by your parent's GP or primary treating doctor
2. Second Medical Report (Form AWI 1): completed by a doctor approved under Section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003, typically a consultant psychiatrist
3. Suitability Report: for welfare guardianship, a Mental Health Officer (MHO) report (Form AWI 2) from the local authority; for financial guardianship, an independent financial report (Form AWI 8)

The local authority has 21 days to prepare the MHO report. Coordinating all three reports within the 30-day window is one of the most common causes of delay.

Costs

Guardianship is expensive. Solicitor fees, court costs, and medical report fees often total several thousand pounds.

Welfare and combined guardianship: the court proceedings qualify for non-means-tested Civil Legal Aid through the Scottish Legal Aid Board (SLAB). Neither the applicant's nor the incapable adult's finances are assessed for the litigation phase. However, the initial legal advice and application preparation are means-tested under the Advice and Assistance scheme — your parent's disposable income must be under £245 per week with capital under £1,716 (if under 60) to qualify.

Financial-only guardianship: court proceedings are fully means-tested against the incapable adult's estate. If their assets exceed SLAB limits, you fund the case privately — though you can petition the Sheriff to reclaim costs from your parent's estate once the order is granted.

Timeline

From initial instruction of a solicitor to the granted order, expect 6 to 12 months. Delays in securing the psychiatric report (the Section 22 approved doctor) are the most common bottleneck.

Alternatives for Smaller Financial Needs

If your parent's financial situation is relatively straightforward — paying care home fees and household bills from a bank account — the Access to Funds scheme may be sufficient without full financial guardianship. This allows you to apply to the OPG to become an authorized withdrawer on a specific account.

For emergency situations where your parent needs a care home placement but cannot consent and has no welfare attorney, the council may use Section 13ZA of the Social Work (Scotland) Act 1968 to arrange the placement without a guardianship order — provided your parent does not actively object and the placement does not amount to a deprivation of liberty.

For a detailed walkthrough of the guardianship timeline and cost breakdown, see our Scotland Dementia Care Guide.

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