Powers of Attorney & Guardianships
An introduction to and explanation of Powers of Attorney and Guardianship.
Power of Attorney
Having a Power of Attorney lets you plan what you want another person to do for you in the future, should you become incapable of making decisions about your own affairs or because it is simply more convenient for you to have someone else deal with your finances. They are not only for older people; anyone can have an accident or illness and not be able to look after him or herself. This is particularly important for people with their own businesses. Granting a Power of Attorney does not mean you are no longer able to carry on looking after your own affairs. It simply means you are sharing your legal authority with someone else. However, if you do loose capacity in the future then a Power of Attorney means there is someone of your choosing in place to take care of your finances and welfare.
The earlier you take advice the better. Having a Power of Attorney is a bit like having house insurance. You hope it is never needed but it is there in case you ever do. This can be a difficult and emotional issue for some people and we are experienced in dealing with clients in a sensitive and appropriate manner. We can help by advising on what you need to consider and having the documentation prepared and registered with the Office of the Public Guardian.
Should I make a power of attorney?
If you lose the ability to look after your own affairs then it is likely your relatives will need to apply to the court to have a Guardian appointed. That can be a lengthy and costly process and may not result in what you wanted. To avoid this you can grant a Power of Attorney to a person or persons that you choose.
Are there different types of Power of Attorney?
You can make a Power of Attorney if you are going abroad for a while and need someone at home to take care of legal or financial issues for you. This type of Power of Attorney does not continue if you lose mental capacity and does not need to be registered with the Public Guardian’s Office.
A Continuing Power of Attorney deals with property or financial matters.
A Welfare Power of Attorney deals with more practical matter such as medical treatment, care and accommodation.
These can be combined into one document.
These types Power of Attorney will continue to have effect if you lose mental capacity and should be registered with the Public Guardian’s Office.
Who should be my Attorney?
You are giving them considerable authority so it must be someone you trust. It can be whomever you want, a family member, friend, solicitor or accountant. You can have more than one attorney who can act jointly or each act alone. You can appoint different people as your financial attorney and your welfare attorney. If you only want one person to act as attorney it is a good idea to appoint a substitute attorney to step in if your original attorney is not able to act.
Guardianships
When someone loses the ability to look after their own affairs they can no longer make a Power of Attorney. In that case a Guardianship Order may be appropriate. This is a court appointment which authorises a person to act and make decisions on behalf of an adult who no longer is able to do this for themselves.
We can help by advising what is appropriate and preparing and dealing with the application. We can also provide advice on an ongoing basis to guardians.
What you need to know about guardianships
Types of guardianship powers
The types of decisions that are to be taken on behalf of the adult will determine the powers that you might need, such as:
Financial
Powers in relation to the finances and property belonging to the adult.
Welfare
Powers in relation to making welfare decisions for the adult.
Combination of financial/property and welfare
Powers, if required can be applied for separately but generally they are made together within the same application to the sheriff court.
Who can be a guardian?
Who can be a guardian?
Anyone with an interest in the adult can apply to be appointed. This could be:
- A family member
- A carer of the adult
- A professional person (solicitor, accountant, etc)
- The Chief Social Work Officer of the local authority
Several people can be involved in the application process. An application can be made to appoint more than one guardian and / or substitute guardians.
A guardian's duties
The Public Guardian has a supervisory role and will expect a guardian to fulfil various responsibilities including:
- Communicating with them.
- If there is property such as a house or land belonging to the adult, the guardian must register the court order with the Keeper of the Register of Scotland
- Submitting an inventory of estate and management plan to us within 3 months of receiving the guardian’s appointment.
- Submitting an annual account of actions and financial decision making.
- Telling them about any change of circumstances relating to the adult or guardian such as changes of address, change of name, death of the adult or a guardian
Welfare guardians are supervised by the local authority in the area where the adult lives. The responsibility usually falls to the local social work department.
How much will it cost?
There are various costs involved: solicitor’s fees, court costs and a fee to register the order and possibly fees for medical reports. The Public Guardian also charges fees for the various services they provide.
Civil legal aid might be available to help with the legal costs of making the application. For more information contact Scottish Legal Aid Board.