Skip to main content

Welfare Guardianship

By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them. 

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 the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000. 

Local authorities have a duty under the Act to supervise all welfare guardians, and to visit the guardian and the adult at regular intervals.

Local authorities also have a duty to make an application for welfare guardianship where it is needed and nobody else is doing so.

The Commission's role

This law also gives the Mental Welfare 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 write to every new private guardian to let them know about our role. We visit around 500 individuals a year on welfare guardianship to ensure that the law is working in their best interests.