Powers of Attorney / Guardianships
Powers of Attorney / Guardianships06 March 2019 Written by James & George Collie

Do you have a relative or friend who is incapable or unable to manage their affairs?  A person’s capacity could be impaired gradually as a result of an illness such as dementia or suddenly as a result of an accident.  A doctor will be able to confirm whether or not that person is able to make decisions.  Depending on the nature of the decisions which need to be made, you may not have the automatic right to take actions on behalf that person.  If a person is incapable those close to them may need legal authority to do certain things for that person.  Where a young person is incapable, their parents are able to manage their affairs on their behalf until they reach the age of 16, but following their 16th birthday, legal authority will usually be required.  However, if there is not already a power of attorney in place giving you or someone else the authority to do these things then all is not lost.

It is possible to apply to the Sheriff Court to be appointed as the incapable adult’s Guardian under the terms of the Adults with Incapacity (Scotland) Act 2000.  This would allow you as the guardian to manage on an ongoing basis the financial or welfare affairs, or both of the incapable adult.  Financial guardianship can allow you to take decisions regarding selling the adult’s house, paying bills, signing documents on their behalf, making investment decisions etc.  Welfare guardianship can allow you to take decisions about where the adult should live, what medical or dental treatment they should receive, with whom the adult should socialise, etc.  The application to the court must be supported by two medical reports and a further report on the suitability of the proposed guardian.  Once a guardian has been appointed, the Office of the Public Guardian (Scotland) in Falkirk, supervises the guardian’s dealings concerning the adult’s finances and property.  If you are applying for a guardianship order relating to the personal welfare of the incapable adult, or relating to both the financial affairs and personal welfare of the incapable adult, then you may be able to apply for civil legal aid to help with the legal costs of making the application.

Where ongoing decisions are not going to be required, then an Intervention Order can allow someone to do a one off specific thing such as sell the house belonging to an incapable adult.  An Intervention Order requires a similar application to the court and medical and other supporting documentation will also be required. 

If full financial guardianship is not required, another option is to apply to the Office of the Public Guardian (Scotland) for authority to access the incapable adult’s funds through the Access to Funds scheme.  This scheme allows money to be transferred from the incapable adult’s bank account into a new account set up for the purposes of the scheme to pay day to day living expenses such as utility bills or care home fees.  It can also be used to request a lump sum to pay off any existing debts or to purchase specific items required by the adult. 

Obviously it is preferable for a Continuing and Welfare Power of Attorney in favour of a trusted relative, friend or solicitor to be set up before it is too late!  A Power of Attorney allows a person to nominate who they would like to be able to take decisions on their behalf in the event of them not being capable of making those decisions.  A Power of Attorney can be thought of like an insurance policy, it is something which you hope you don’t ever need, but it gives you peace of mind to have one in place, just in case.

For information or advice on Powers of Attorney or Guardianship, please contact Vivienne Bruce on 01224-581581

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