If you lose capacity to deal with your own affairs and do not have a Continuing and Welfare Power of Attorney (POA) it is likely that an application will have to be made to the Sheriff Court for a Guardian to be appointed to make decisions on your behalf.
As many people are shocked to discover, obtaining a Guardianship Order is not straightforward, involving a great deal of paperwork, not to mention delay and expense. Various reports have to be obtained, and the average cost across Scotland in medical, court and legal fees where Legal Aid is not available is £3,000. It can take between 4 and 12 months to obtain the Order, depending upon circumstances such as the complexity of your affairs, and until then your assets are effectively frozen.
In addition to this, the Sheriff is obliged by law to grant only the minimal (least restrictive) powers required by your Guardian. Therefore there is every possibility that they will have to apply for further powers if your circumstances should change in the future.
Fortunately it is possible to avoid these problems by making a POA, provided that this is done while you still have the necessary capacity to do so. Unfortunately many people leave it too late to make a POA; capacity may be lost either gradually or suddenly – for example as a result of an accident or stroke.
A POA can be granted quickly, simply and cost-effectively. The entire procedure, including registration with the Office of the Public Guardian, can take as little as 4 weeks to complete. The paperwork is also much more straightforward than is required in a Guardianship application, with the total cost usually being less than £300, including VAT and the Court registration fee.
Making a POA is not a matter of relinquishing control or giving up, but taking the positive step of ensuring that your affairs are handled by someone you trust if you should become unable to deal with these personally in the future.
If you have any queries about POAs please contact Chris Wallace in our Private Client Department.
