A power of attorney is a document you sign while you still have capacity, choosing who will make decisions for you if you cannot. Guardianship is a court order that someone else applies for after you have lost capacity, when no power of attorney is in place. Both are governed by the Adults with Incapacity (Scotland) Act 2000, but they differ greatly in cost, speed, control and supervision.
Understanding the difference is the best argument for planning ahead. This guide compares the two side by side and explains when each is used.
What is a power of attorney?
A power of attorney lets you (the "granter") appoint one or more people (your "attorneys") to act for you. In Scotland there are two main types, which are often combined in one document:
- Continuing power of attorney: covers money and property, such as paying bills, dealing with banks and selling a house. It can be used straight away with your consent, or only once you lose capacity, depending on how it is drafted.
- Welfare power of attorney: covers personal and health decisions, such as where you live and consenting to medical treatment. It can only be used once you have lost capacity to make the decision in question.
To be valid, the document must be signed by you and certified by a solicitor, a practising advocate or a registered medical practitioner, who confirms that you understand what you are signing and are not under undue influence. It must then be registered with the Office of the Public Guardian (OPG) before your attorneys can use it. From 1 April 2026, the OPG registration fee is £99.
What is guardianship?
If an adult loses capacity without a power of attorney, nobody has automatic authority to manage their affairs. Not a spouse, not adult children and not the next of kin. A relative, friend or the local authority may then need to apply to the sheriff court for a guardianship order under Part 6 of the 2000 Act.
The application must be supported by evidence, normally including:
- Two medical reports on the adult's capacity, one of which must be from an approved specialist where the incapacity is due to mental disorder.
- A mental health officer's report from the local authority where welfare powers are sought, or a report from a suitable person where only financial powers are sought.
- Details of the powers sought and why they are needed.
The sheriff decides who is appointed and what powers they have. Orders are often granted for three years, though the court can choose a different period, and they must then be renewed. Once granted, the order is registered with the OPG, with a fee of £110 from 1 April 2026.
Side-by-side comparison
| Feature | Power of attorney | Guardianship |
|---|---|---|
| Who chooses? | You choose your attorneys | The sheriff appoints the guardian |
| When is it set up? | While you have capacity | After capacity has been lost |
| Process | Document, certificate and OPG registration | Court application with medical and social work reports |
| Typical timescale | Weeks | Often several months or longer |
| Cost | Solicitor's fee plus £99 OPG fee | Usually much higher: court process, reports and £110 OPG fee |
| Supervision | Light: attorneys must act in your interests and keep records | Ongoing: financial guardians are supervised by the OPG, welfare guardians by the local authority |
| Duration | Indefinite unless revoked | Fixed period, then renewal |
Important: a power of attorney can only be granted while the person still has the capacity to understand it. A diagnosis of dementia does not automatically mean that capacity has gone, but once it has, guardianship or another court-based route is usually the only option.
The principles that apply to both
Whoever acts for an adult, whether an attorney or a guardian, must follow the principles in section 1 of the 2000 Act. Any action must benefit the adult, be the least restrictive option, take account of the adult's past and present wishes, consult relevant others such as the nearest relative and primary carer, and encourage the adult to use their own skills as far as possible.
Other options between the two
Guardianship is not always necessary. Depending on what needs to be done, there may be simpler routes:
- Intervention order: a sheriff court order authorising a single action or decision, such as selling a house or signing a tenancy. OPG registration costs £110.
- Access to Funds: an OPG scheme letting someone access the adult's bank account to pay day-to-day bills through a designated account. Registration costs £110.
- Benefit appointee: the Department for Work and Pensions or Social Security Scotland can appoint someone to manage the adult's benefits.
Our guide to what happens if a parent develops dementia without a power of attorney explains these options in more detail.
Which is better?
For almost everyone, a power of attorney is better. It is quicker, cheaper and less intrusive, and it lets you decide who will look after your affairs instead of leaving the choice to a court. Guardianship is an important safeguard when no planning was done, but it is a slower, more expensive and more formal process that families often find stressful at an already difficult time.
Many people put a power of attorney in place at the same time as making a will. Compare the leading power of attorney and guardianship solicitors in Glasgow, or see our ranking of wills, trusts and executry solicitors.
Frequently asked questions
What is the main difference between power of attorney and guardianship in Scotland?
You grant a power of attorney yourself while you have capacity, choosing who will act for you. Guardianship is a court order applied for by someone else after you have lost capacity, when no power of attorney exists.
Is guardianship more expensive than a power of attorney?
Usually, yes. Guardianship involves a sheriff court application, medical and social work reports and ongoing supervision. A power of attorney involves a solicitor's fee and a £99 OPG registration fee.
Can next of kin make decisions without a power of attorney?
No. In Scotland, next of kin, including spouses, have no automatic legal authority over an adult's finances or welfare decisions.
How long does a guardianship order last?
Guardianship orders are often granted for three years, although the sheriff can choose a different period. They must then be renewed if still needed.
Who supervises guardians and attorneys?
The Office of the Public Guardian supervises financial guardians and can investigate concerns about attorneys. Local authorities supervise welfare guardians.
Can I still get a power of attorney after a dementia diagnosis?
Possibly. A diagnosis does not automatically mean a lack of capacity. If the person can understand the document, a solicitor or doctor may be able to certify it, so act quickly.
Conclusion
So, what is the difference between a power of attorney and guardianship in Scotland? A power of attorney is your own choice, made in advance and registered for £99. Guardianship is a court order made after capacity has been lost, chosen by a sheriff and supervised on an ongoing basis. Planning ahead avoids the cost, delay and stress of the court route.
Compare the best power of attorney solicitors in Glasgow to find a firm that can help you put arrangements in place, or apply for guardianship if it is already needed.