A suitable guardian is worth weight in gold

Its ruling made clear that the focus of any guardianship application must be the best interests of the adult concerned, not those of other people - and that, while courts can consider inheritance disputes, the guardianship process is not the appropriate place.

It is a timely reminder, with figures from The Mental Welfare Commission showing that, in 2024-25, the number of people under guardianship rose above 20,000, up 5.6% year on year.

While guardianships are generally non-contentious, there can be scope for disagreement when it comes to guardian appointment.

Under the Adults with Incapacity (Scotland) Act 2000, a guardian can be given the legal power to make welfare and/or financial decisions on behalf of an adult who lacks capacity to make those decisions themselves.

Capacity is determined by medical assessment, with incapacity commonly being due to dementia, Alzheimer’s disease and cognitive decline for example. Almost half of guardianship orders in 2024-25 were due to a learning disability.

Guardianships are usually considered where the adult in question does not already have a Power of Attorney in place.

The recent case of ABG Applicant against CDG concerned a gentleman (‘the Adult’) diagnosed with Alzheimer’s disease. He had been deemed by medical experts to be incapable of managing his own welfare and financial affairs.

The Adult had granted a Power of Attorney in 2015, which ought to have avoided the need for guardianship, but this was deemed invalid, requiring a guardianship order.

The Adult’s wife (‘the Applicant’) applied to become the Adult’s financial and welfare guardian.

No issue was taken with the Applicant being appointed as the Adult’s welfare guardian. The Adult’s son, however, disagreed with her being appointed financial guardian and sought to become financial guardian himself.

During the hearing, it became clear that this was because in 2020, the Adult transferred his half share of the property he owned with the Applicant to the Applicant. This decision was not discussed with the Adult’s son at the time. That essentially led to a concern from the son that if the Applicant was appointed financial guardian, she may leave the property, in its entirety, to her own children from a previous marriage, effectively disinheriting the Adult’s three sons.

The court ultimately appointed the Applicant as welfare and financial guardian, ruling that opposition by the son was not rooted in concerns regarding the Applicant’s suitability to the role, rather due to concerns over inheritance.

The detail of the ruling is interesting in several ways, including that if someone is considered a suitable welfare guardian, it would likely follow they would be a suitable financial guardian - although this will not apply in every case, for example, where there are genuine concerns over alleged financial mismanagement.

It is also worth noting that, where there is disagreement about who should be financial guardian, it is possible to appoint a solicitor - or other professional - into the role. That leaves loved ones free to focus on welfare.

If you have concerns about a loved one making decisions which you fear they do not understand, you are best seeking legal advice.

This recent case highlights how difficult it can be to navigate these situations - and what’s appropriate at certain times.

Samantha Miller is an Associate, Lindsays