AM Advocates
5 Contributions by AM Advocates Experts
PRACTICE NOTES
Practice Note
On 31 January 2018, the Scottish Government opened a consultation on potential reform of the . This was followed by the Scottish Mental Health Law Review, issued in September 2022. In July 2024, the Scottish Government released proposals for an Adults with Incapacity Amendment Act (see here), which remain out for consultation. It is also consulting on a draft Learning Disabilities, Autism and Neurodivergence Bill (see: here). The Scottish Government has signalled that broader reform of the Adults with Incapacity regime will be explored within a Work Programme running to 2030. No fresh legislation is anticipated before the Scottish Parliament is dissolved in May 2026. This Practice Note considers the (AI(S)A 2000), the statute that sets the framework for safeguarding welfare and managing finances for people in Scotland aged over 16 who lack capacity due to mental illness, learning
Private Client
PRACTICE NOTES
This Practice Note sets out the matters to weigh up before seeking the appointment of a welfare and/or financial guardian for anyone aged 16 or over in Scotland, under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000). For guidance on the court route for such applications, see Practice Note: Guardianship applications in Scotland—court process. For the statutory framework relevant to an application, see Practice Note: Adults with Incapacity (Scotland) Act 2000.
When should a guardianship application be considered?
Consider a guardianship application where an adult has lost mental capacity, cannot handle their own welfare and financial matters, and there is no power of attorney in force. An adult is regarded as ‘incapable’ if they are unable to:
acting
making decisions
communicating decisions
understanding the decisions
retaining the memory of decisions
Such incapacity need not arise from a mental disorder (section 328 of the Mental Health (Care and
Private Client
PRACTICE NOTES
This Practice Note explains the court procedure for appointing a welfare and/or financial guardian to an adult aged 16 or over in Scotland, covering the process from preparing the application to the making of the order. For guidance on considerations before applying to appoint a welfare guardian or a financial and property guardian, see Practice Notes: Welfare guardianships—Scotland, Financial and property guardianships—Scotland and Adults with Incapacity (Scotland) Act 2000. The Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) provides the statutory framework for safeguarding the interests of adults who lack capacity in Scotland.
Drafting of the application
Initial step
All lay guardians seeking financial powers must complete and lodge a Guardian Declaration form together with the application.
Style
There is no prescribed statutory style for a guardianship order application; commonly it proceeds by summary application for a first order and for any renewal, and by minute to vary an
Private Client
PRACTICE NOTES
Within this Practice Note, an incapacitated individual is termed the ‘adult’. For the statutory basis for guardianships, see Practice Note: Adults with Incapacity (Scotland) Act 2000. For details on applying to appoint a guardian, refer to Practice Notes: Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process.
General principles
Anyone appointed under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) must carry out the office in accordance with the s 1 principles, which can be summarised as:
the appointment should confer a benefit on the adult
any intervention should be the least restrictive of the adult’s freedom
the adult’s wishes, past and present, must be considered
so far as reasonable, the views of other relevant parties should be taken into account
the adult should be encouraged to use their abilities wherever possible
These operate as the guiding principles. Guardianships are addressed under Part 5 of AI(S)A 2000 and are most
Private Client
PRECEDENTS
By [name of granter]
In support of [names(s) of Attorney(s)] (Continuing and Welfare Attorney(s)) [ year ] [ Agent details ] Reference: [ ...
Private Client
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