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What happens if it is too late for a power of attorney? 

A Power of Attorney is a document put in place by someone when they have the mental capacity to decide to appoint someone to assist them in looking after their finances or their welfare.

However, what happens if that person is told that they cannot make a power of attorney as they no longer have capacity?  If this has happened to your relative you need to consider applying for a guardianship order. 

What is a guardianship order? 
A Guardianship order can only be granted by a Sheriff.  It is an order which grants certain powers to a Guardian to act on behalf of the Adult who is now not capable of making decisions for themselves.   

How long does it take? 
It can take many months perhaps as long as a year in some cases for a guardianship order to be put in place.  The delay is usually due to obtaining the reports which accompany the application for a guardianship order.  The Social Work departments, who provide a Mental Health Officers report, are overwhelmed with requests and have limited numbers of staff who are trained to provide these reports.  It is vital you start the process as early as possible.


Who can apply to be a guardian? 
Anyone who has a legitimate interest in the financial or welfare affairs of an incapable adult can apply to be appointed guardian? 

What if you don’t agree with someone applying to be guardian for your relative? 
You can oppose their application once it has been lodged with the court.  You will need to suggest an alternative such as becoming Guardian yourself or asking the Local Authority to act as guardian. 

Is Guardianship the only option? 
There are alternatives to a Guardianship application which can be explored such as an application for access to funds or an intervention order.  At MacBeath Family Law we would be happy to discuss through the options available to you to ensure you make the best decision for the incapable adult. 

At MacBeath Family Law we offer a one hour consultation with a follow up letter of advice for the sum of £240 (including VAT), contact us now to discuss how we can help you through this difficult time. 


As always, the purpose of this blog is to provide an overview of the position in Scotland and should not be relied upon as legal advice.  You should always obtain specialist legal advice about your own circumstances.  Please call 0131 5818 652 or email to arrange an appointment.  

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