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In Scotland, anyone over the age of sixteen is considered an adult and acquires legal capacity at that age.

The term Guardian in Scotland has two separate meanings. The first is appointed by the court to act for a person lacking capacity.  The second form of guardian is the appointment of a legal guardian to look after children under the age of sixteen, and are usually appointed by written instruction of the children’s parents.  This can be done in the form of their Will, or separate written instructions.  The appointed guardian is considered to be the child’s legal representative, and has legal rights to make decisions regarding that child.  The decisions can include where the child lives, for example, with them or with another family member, where the child should be educated and how they should be brought up.  The legal guardian will have parental rights and responsibilities, and will make important decisions regarding the child.

In the event of a legal guardian being appointed by a deceased parent’s Will and the other parent still being alive the parent that is alive has the same rights over the child, as they already had, but the guardian also has the same rights.  It is therefore up to the surviving parent and the legal guardian to agree what is best for the child.  Being a legal guardian is an important responsibility and could financially impact on them.  The guardian may therefore be able to claim a form of child benefit or legal guardian allowance to assist.

Many are of the understanding that godparents share a similar responsibility over children under the age of sixteen, however there is one major difference.  A godparent does not have automatic legal rights over a child, as their role is considered a religious one and not a legal one.  The godparent can apply for legal rights over the child but that would need to be granted by the Court for it to be legal.  It is therefore important that people understand the difference and formally write their wishes down to ensure that the person/s that they wish to be the legal guardian have the required rights they intended.