If you have parental responsibilities and rights, the law permits you to make legal decisions on behalf of your child until the child reaches the age of 16. If you need to continue making legal decisions on behalf of your child after the child has reached the age of 16, you have to be legally appointed to do so.

If you wish to be appointed, it is important that you seek legal advice before your child reaches age 16.

From April 2002, under The Adults With Incapacity (Scotland) Act 2000, you may apply to the sheriff court to be appointed as a guardian for your child. A guardian may have financial and/or welfare powers to make decisions on behalf of the “incapable adult”. More than one guardian may be appointed to act for an incapable adult.

The definition of “incapable” is: incapable of acting or making decisions or communicating decisions or understanding decisions or retaining the memory of decisions in relation to any particular matter, by reason of mental disorder or of inability to communicate due to physical disability.

If you are appointed as a guardian you must comply with the principles set down in the Act. These are:

Principle 1 – Benefit

You are not permitted to intervene in the life of the incapable adult unless you are satisfied that there is a benefit to the adult and that such benefit cannot be achieved without your intervention.

Principle 2 – Minimum Intervention

Your intervention must be the least restrictive option in relation to the freedom of the incapable adult.

Principle 3 – Take Account of the Wishes of the Adult

You must seek the views of the incapable adult, by any means possible.

Principle 4 – Consultation With Relevant Others

You must seek the views of the nearest relative, the primary carer, any person already appointed to act for the adult and any other person who appears to be relevant.

Principle 5 – Encourage the Adult to Exercise Whatever Skills he or She Has

You must encourage the adult to exercise whatever skills he or she has concerning property, financial affairs or personal welfare, and to develop new such skills.