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Advice & information

Adults with incapacity and us

The law

By law, if an adult is unable to make a safe decision about his or her own welfare, a court can appoint a 'welfare guardian' to make decisions for him or her. Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care. The welfare guardian might be a relative, friend or a carer. The court can also appoint a social worker to be a person's guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000. This law also gives the Commission a role in making sure that welfare guardianship works in a person's best interest and is in line with the principles of the Act. These principles say that any decisions made by a guardian:

  • must be of benefit to the person concerned
  • will only be taken when it is really needed
  • must take into account the wishes of the person
  • should restrict that person's freedom as little as possible
  • should only be taken when the person could not make a decision themselves
  • should involve carers, relatives and people who work closely with the person

We check the paperwork for guardianship orders to make sure that the right information has been supplied and that the right people have been involved in the decision. Where we are concerned we will follow this up either by asking for more information or by visiting the person on guardianship to check how things are working for him or her.

Want to know more?

  • Information about the law and what it means for guardians and for people on guardianship is available from the Scottish Government website.
  • If you want more information about our role in welfare guardianship please see our information leaflet(.pdf).
  • If you are a guardian, or work in a service where people might be subject to the protections of the Adults with Incapacity Act, we have produced a number of good practice guides to help you to work in line with best practice and the law. You can read or download these from our ReportsHub .
  • For information from our visits and monitoring of the Adults with Incapacity Act visit our ReportsHub.
  • Some guardianship orders only give power to take care of an individual's finances. The Office of the Public Guardian are responsible for overseeing financial guardianship matters.