Quite often a Guardianship Order is necessary, particularly in instances where a child who has a life long illness or lacks in capacity becomes an adult and the parents no longer have automatic parental rights and responsibilities for them and it is necessary to apply to the Courts to obtain powers to act on their behalf.
However, we are seeing an increase in adult children (and other next of kin) approaching us because their parents have been admitted to hospital and the Doctors or medical staff have advised putting in place a Power of Attorney. Quite often it is too late for the adult to grant such powers as they have lost the capacity to do so and in this case, the adult children (or another interested party) will have to apply to the Courts to obtain powers to allow them to deal with the adult’s finances and make decisions about their welfare, by way of a Guardianship Order or, in cases which are perhaps more urgent or only require a specific matter dealt with, an Intervention Order.
An application for a Guardianship Order involves the process of obtaining two medical reports of incapacity and one suitability report provided by a Social Worker. Once these have been obtained, the reports are submitted to the Sheriff Court in the area in which the adult resides. The application and reports will then be sent to all interested parties, including The Office of the Public Guardian to allow them to raise any observations they may have in relation to the application. In the instance where financial powers are being sought, the Sheriff may also stipulate the requirement for a Bond of Caution, being an insurance policy to protect against financial loss in the case of the guardian not managing the affairs properly.
Over 3,000 Guardianship Orders were registered with The Office of the Public Guardian in the year to March 2025, with the vast majority of those being required for both Welfare and Financial purposes, and where only one type of Order was being sought, the majority of those were for Welfare purposes.
In an age where illnesses and conditions such as dementia (including alzheimers, vascular dementia etc.) and indeed problems with mental health are prevalent, it is becoming more important for adults to consider the possibility that one day they may not be capable of dealing with their own finances or make decisions about their welfare. Even in situations where the adult may be undergoing treatment for illnesses such as cancer, which can be fairly gruelling and can affect the adult’s ability to deal with even the simplest of tasks which ordinarily they would be able to do, having something in place to give a family member the authority to help them with their finances (without taking matters over completely) would remove some of the pressure they may find themselves under. A Power of Attorney, once signed by the granter, could provide an Attorney with Financial Powers immediately with Welfare Powers only coming into effect once the adult has fully lost capacity.
It is understandable that it can be difficult to consider allowing another family member to deal with your finances and make decisions on your behalf. It may also be considered as an expensive outlay to arrange for a Power of Attorney to be put in place. However, whilst Legal Aid may be available in respect of applying for Welfare powers under a Guardianship Order, there are fewer Solicitors who undertake work involving Legal Aid applications and therefore the costs and time involved in having to apply for a Guardianship Order can be high.
The lack of a Power of Attorney or any other such authority in the case where adults have lost capacity, can also cause delay in hospitals being able to discharge patients into either care homes or their own homes with a care package in place, resulting in more pressure on the NHS being able to “free-up” beds.
According to The Office of the Public Guardian, in the period between April 2024 and March 2025, there were almost 10,000 requests made to expedite the registrations of a Power of Attorney as a result of it being required urgently to deal with matters. To put this in perspective, The Office of the Public Guardian registered in the region of 67,000 Power of Attorneys in the last year.
With an adult population in Scotland of over 3 million, this equates to less than 3% of adults having considered the importance of putting a Power of Attorney in place. Figures provided by Alzheimer Scotland also indicate that over 90,000 people in Scotland have been diagnosed with dementia alone, with these figures set to rise in the next 20 years by potentially over 50%.
Whilst a Power of Attorney is by no means restricted to the elderly, with a population which now has more people aged over the age of 65 than those aged under 15, it should surely be as important, if not more so to consider putting a Power of Attorney in place as it is making a Will to prevent your assets from becoming inaccessible during your lifetime if nobody has the authority to act on your behalf?
If you would like to book an appointment to get your affairs in order please give us a call. We would be delighted to help.
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