‘Our job is standing beside people, not in front of them’

In my work with adults who have learning disabilities, I’ve seen how guardianship can make a profound difference when it’s applied in the right way. When the powers granted are proportionate and properly supervised, guardianship can safeguard rights, wellbeing and dignity — offering vital protection when all other supports have been exhausted.

But I’ve also seen a very different reality emerging. Increasingly, private welfare guardianship is treated as something automatic, almost a rite of passage when a young person with a learning disability reaches adulthood. Families are often told early on that they “will need to apply for guardianship, rather than being supported to explore a range of options.

That mindset worries me. Guardianship was never meant to be a blanket approach. It was designed to be a measure of last resort — used only when necessary, and always with the adult’s own will and preferences at the centre.

Losing sight of the least restrictive principle

Under the Adults with Incapacity (Scotland) Act 2000, every intervention must follow the “least restrictive option” and take account of the person’s wishes and feelings. Yet, in practice, I’ve seen guardianship orders granted with an extensive list of powers, many of which go far beyond what’s needed.

I’ve come across orders that even specify what someone can eat or wear, despite no evidence that such control is necessary. These situations highlight a worrying pattern. When guardianship is treated as an ongoing state rather than a temporary measure, it risks undermining the very principles the Act was built upon — choice, participation and proportionality.

Inconsistencies and cultural drift

Another issue lies in how differently public and private applications are scrutinised. Local authority applications usually go through several layers of legal and managerial review, while private applications can vary greatly in how powers are justified. This isn’t about fault or bad faith — most guardians act out of genuine care — but about ensuring that the system itself promotes consistency and proportionality for everyone.

I’ve also met guardians who truly believe that the person they represent “cannot make any decisions,” even though, with the right support, that individual can and does make meaningful choices. Sometimes, I’ve witnessed information being filtered or edited before it reaches the person, so their responses appear to confirm what the guardian expects. This often comes from good intentions — a desire to protect — but it slides easily into paternalism.

True protection, as the Adults with Incapacity principles make clear, should enhance a person’s participation in decision-making, not exclude them from it.

Supervision and strain

Recent guidance from the Scottish Government and the Mental Welfare Commission for Scotland emphasises that local authorities have a statutory duty to supervise all welfare guardians, including private ones. This means ensuring guardians understand their responsibilities and act in line with the least restrictive principles.

However, that level of oversight is increasingly hard to maintain. Social work teams across Scotland are under huge pressure. Resource constraints, rising caseloads and the growing number of guardianships mean that meaningful supervision can sometimes slip into a “tick-box” exercise.

This isn’t a criticism of professionals – far from it. It reflects a system under strain, where expectations have expanded faster than resources or guidance. But when oversight becomes inconsistent or reactive, the risk is clear: guardianship can end up eroding the very rights it was designed to protect.

When absence feels unsafe

One of the most revealing moments for me came during discussions with service providers who expressed genuine anxiety when a person didn’t have a guardian. Some staff weren’t sure how to proceed with decisions or manage risk without one in place. Guardianship had become so normalised that its absence felt unsafe.

This isn’t about blaming individuals or services – it reflects a broader cultural shift. Over time, guardianship has become seen as the “responsible” thing to do, a way to reassure families and professionals that someone is “in charge.” But that belief runs counter to the direction Scotland is moving in.

The Scottish Government’s ongoing consultation on reforming the Adults with Incapacity Act proposes a shift toward supported decision-making, in line with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. This represents a profound cultural and legal change – recognising that capacity is not all-or-nothing, and that everyone has the right to make decisions about their own life with the right support.

Reclaiming the purpose of guardianship

If we’re serious about a rights-based approach, we must move away from the idea that every adult with a learning disability automatically needs a guardian. Guardianship should protect, not disempower. It should be used only when absolutely necessary – and even then, it must be reviewed regularly, supervised effectively and focused on enabling autonomy, not replacing it.

To achieve this, Scotland needs to invest in a stronger framework that supports both professionals and families to work differently. That means:

Consistent national guidance and training for everyone involved in supervision and decision-making
Adequate staffing and resources so local authorities can fulfil their statutory duties
A cultural shift that makes supported decision-making the norm and guardianship the exception
Regular reviews to ensure every order continues to meet the least restrictive principle

Guardianship can either uphold rights or erode them – it all depends on how we use it. When it becomes a routine administrative step, rather than a carefully considered decision, we risk creating dependency instead of empowerment.

Realigning practice with principle

As Scotland revisits its legislation, we have an opportunity to realign practice with principle. That means recognising that not every adult with a learning disability needs someone else to speak for them. Many can – and do – make their own decisions when given time, communication support and trust.

The challenge for all of us in social work is to stay alert to that distinction: between protection and control, support and substitution. Our job is to stand beside people, not in front of them.

Protecting someone should never mean silencing them. It should mean standing beside them while they find their voice — and ensuring that the systems we build are designed to listen.

Louise Gallacher is a social worker in a specialist learning disability team in Central Scotland. She is passionate about rights-based practice, supported decision-making, and ethical reform in social care. The views expressed here are her own.

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