Guardianship Case & Incapacity

Unfortunately, there may come a time when someone close to you is no longer able to make decisions for themselves. Someone in this position can be vulnerable both physically and financially, and a guardianship case ensures they're properly supported.

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The Short of it

  • If a loved one has become incapacitated due to illness or being involved in an accident,

    you can apply for legal guardianship to help care for them.

  • The incapacitated person may require help with healthcare and general welfare,

    or help in making financial decisions.

  • We understand that this is a difficult situation for both you and the incapacitated party,

    and we are here to help you through the legal process smoothly.

  • Everything we do at Watermans is about getting you the resolution you need

    and providing Straightforward legal advice. It should be that simple.

  • The Long of it

    Guardianship and incapacity

    What to do if someone becomes incapacitated?

    Unfortunately, there may come a time when someone close to you is no longer able to make decisions for themselves, and this can include elderly people with dementia, or young people who have been rendered incapable due to a condition or an accident. Being in this position can cause someone to be physically, mentally, and financially vulnerable, and you will want to ensure that they are properly supported.

    If your friend or family member has made a Power of Attorney, the person they have named in that document can normally take over dealing with their affairs. However, if they haven’t, it may no longer be possible to do so – because only someone with capacity can grant a Power of Attorney. It may be too late by the time anyone realises there’s an issue, especially if the person is elderly and deteriorates quickly.

    If a Power of Attorney isn’t possible, you will likely need to ask the court to make a guardianship or intervention order. These are court orders which give the legal authority for someone to take decisions on behalf of a person who can no longer do so themselves. As you’d expect, there’s a detailed application process which has been designed to protect vulnerable adults and ensure their rights and dignity are respected.

    Coping with the declining health or incapacity of a loved one is difficult enough, without the thought of having to go to court. This is where we can help. At Watermans, we are experts in navigating this process from start to finish.

    Guardianship Orders

    Who can be appointed as a guardian?

    If you have a relationship with the incapacitated person, you can apply for guardianship, as can local authorities where they deem necessary.

    Usually it is a close relative who is appointed, and in Scotland it is possible to have more than one guardian. This can make it easier to care for the person, as one guardian may care for them physically and emotionally, and the other can take care of financial issues and asset management. Quite often, it is a solicitor who is appointed to manage the incapacitated person’s finances and property.

    Depending on the circumstances, the process can be long and complicated. There is no set time for a guardianship order to be granted, however the process can usually take up to six months.

    Guardianship responsibilities

    What responsibilities do I have as a guardian?

    When applying to be somebody’s legal guardian, you will have to state to the court why you are applying and for what you will have responsibility for.

    As an appointed guardian, you will have a responsibility for the incapacitated person’s health, welfare and living arrangements. You will also be in charge of taking care of their finances, including banking transfers and asset management, and may need to claim benefits on their behalf.

    Due to the amount of work and responsibility involved in being a guardian, it is easy to see why two people are often appointed.

    Why Watermans?

    Why should I choose Watermans as my guardianship solicitors?

    At Watermans, we understand what a difficult time it can be for everyone in this situation. Seeing your loved one unable to care for themselves or their finances is devastating, and the last thing you need to worry about is the complicated legal process.

    We’re experts in family law and we know our stuff – but we’re also normal people you can have a real conversation with. We don’t use legal jargon (or Latin), we give straightforward advice, and we won’t judge or patronise you. Coming from a range of backgrounds and with our own life experiences to draw on, we understand and empathise with how stressful family disputes can be. We know how important it is to trust your lawyer and that you need to know we’re in your corner. Our aim is to work in partnership with you to help resolve things quickly and cost-effectively so you can move forward with your life.

    We take the hassle out of the legal stuff, so that you can concentrate on caring for your loved one and getting on with your lives.

    Get in touch with us

    Everything we do at Watermans is about getting you the resolution you need and making that process straightforward. Start the process by sending us your details below or calling us on 0131 555 7055


    Our Family Law expert

    “People often say to me that family law must be a depressing job – but I’ve never felt that. What we do makes a difference. I love working with my clients to understand their stories, help them work out where they want to get to, and collaborate with them to achieve their goals. Seeing people come through it and embark on a new stage of their lives is a great feeling.”

    Dianne Millen, Head of Family Law