Powers of attorney, guardianship and incapacity
Making decisions is something that many of us take for granted.
But what happens if you lose capacity to look after your finances or welfare? This can happen suddenly and unexpectedly as a result of accident or illness, or due to a more gradual and predictable illness such as dementia.
If you become unable to choose where to live and what care you need, then your Local Authority can make these decisions for you instead of trusted relatives or friends? Similarly if you were unable to deal with your financial affairs, your next of kin would not automatically be able to help. These scenarios can be avoided by signing a welfare and/or a continuing (financial) Power of Attorney now so that in the future, people you trust and chosen by you can protect your wishes, best interests, investments and assets.
On the other hand, if you wish to help a relative or friend who can’t make their own decisions and doesn’t have a Power of Attorney, you can apply for Guardianship. We understand that trying to help someone who can’t fend for themselves can be emotional and often daunting but we’re here to cut through the legal jargon, explain your options and help you choose the best solution.
Both Powers of Attorney and Guardianships are important considerations for parents if their child has issues with capacity and is approaching their 16th birthday. In Scotland a 16 year old is legally an adult and therefore their parents have no legal right to make decisions on their behalf. We can help by discussing what options are available during this transition and help to put measures in place to allow you to keep making decisions and care for your child.
Power of Attorney
What is a Power of Attorney (POA) and why should I grant one?
A POA allows someone you trust to make financial and/or welfare decisions for you if you need help in the future.
What if I’m not ready to hand over control?
Signing a POA doesn’t mean you stop making your own decisions. You’re simply choosing the best people to assist you if necessary.
Can’t I just wait until I need one?
Possibly, but it’s a bit risky as you don’t know exactly if or when you will need one and by then it may be too late to put one in place. Planning ahead brings peace of mind for the future.
Who should my attorneys be and what powers should I give them?
It’s entirely up to you but you should only appoint people you trust. Giving them wide powers means they can deal with all eventualities. We can discuss all of this with you and tailor the powers to meet your specific needs.
How do I put a POA in place?
We’ll set up an initial meeting to explain all of the options available to you and the associated costs to help you make an informed decision. If you decide to go ahead then we’ll meet again to review and complete the POA together. The POA must be registered before your attorney(s) can act on your behalf. We’ll explain the pros and cons of registering it now or later.
What is Guardianship and how do I apply?
Guardianship is authority from the court to make decisions for someone who’s over 16 and unable to look after their own affairs or grant a Power of Attorney. The court application process can be lengthy but we provide ongoing support from start to finish as well as advice once the Guardianship is in place.
Who should the Guardian(s) be and what do they do?
Relatives, friends or professionals are usually appointed as Guardians. They’re given responsibility for safeguarding the vulnerable individual’s welfare and/or financial affairs. Guardians also have strict accounting and record-keeping obligations and are supervised by the Public Guardian (for financial matters) or the Local Authority (for welfare matters). This is a time consuming role, so it’s important to think carefully before taking this on.
How long does a Guardianship application take and when should I start?
The process takes several months, so the sooner the better. If you have a child who is unlikely to be able to make their own decisions or grant a Power of Attorney when they become an adult, you should start the ball rolling up to a year before their 16th birthday.