Powers of Attorney v Guardianships

Powers of Attorney v Guardianships.   Solicitors are always encouraging their clients to make a Continuing Power of Attorney (‘POA’), as the preferred alternative to a Guardianship Order. Unfortunately the importance of doing so may become fully clear only when it is too late to make a POA once mental capacity is lost.

We tend of think in terms of losing our capacity as a result of dementia, or a slow deterioration which will give sufficient time to make a POA. However, the ability to manage our affairs can be lost suddenly, for example as a result of a stroke or accident. Furthermore, according to a survey by Alzheimer Scotland between 58,000 and 65,000 in Scotland are living with dementia, and 1,600 of these are aged under 65 years.

A common misconception is that a member of our family or partner will simply be able to ‘take over’ management of our affairs and make welfare and financial decisions for us if we lose capacity to do so personally. However without a POA the only way that access to our affairs may be ‘unlocked’ is to obtain an Order from the Sheriff Court, usually in the form of a Guardianship Order.

Guardians typically report their duties as being onerous and disproportionately complex, given the requirement of regularly completing and filing with the Court financial reports and having to re-apply for an extension of powers where these are not contained within the original Order. Obtaining the Order can involve delays of typically between 4 and 12 months, as medical and other reports must also be obtained. Unless Legal Aid is available the Court, medical and legal fees for obtaining the Order averages £3,000 across Scotland, according to the Office of the Public Guardian.

In contrast a POA is much more straightforward and less stressful for everyone concerned. It usually takes only a few weeks or less to make and register a POA, the powers granted to the Attorney are very extensive, a medical report is not usually required, the paperwork involved is much simpler and the fee is rarely more than £300 including VAT and the Court registration fee.

Like a Guardian, an Attorney has to act in accordance with certain guidelines so as to carry out their functions in the best interests of the Granter of the POA. The Court may intervene by investigating, supervising and even removing an Attorney who does not comply with their duties, although this is very rare where care has been taken to appoint a trusted person to act.

Importantly, making a POA is not about ‘giving up’ but simply extending authority to someone of your choice who will be able to seamlessly make welfare and financial decisions on your behalf if you ever become unable to do so personally in the future.

If you have any queries regarding the issues referred to in this article please contact Chris Wallace in our Private Client Department.

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