People often assume that when they are no longer capable of making their own decisions in relation to financial and welfare issues that their spouse or family member can step in and take over. This is simply not the case. Unless there is a Power of Attorney in place no one has any right to make decisions on your behalf.
Unfortunately we are seeing a rise in the number of people who lose capacity and do not have a Power of Attorney in place and therefore we then have to arrange to apply to the Court to have a Guardian appointed.
Although the role of a guardian and an attorney is very similar the process involved in putting these in place are very different. A Power of Attorney can be set up fairly quickly whilst you have capacity to make decisions on your own behalf and these have to be signed off by a Solicitor or General Medical Practitioner and are then sent to the Office of the Public Guardian for registration.
The process for applying for a Guardianship order is more complex and involves an application to Court. A Court hearing can take a significant period of time (usually around 6-9 months) and in the meantime nothing can be done in relation to your finances and welfare matters should you be incapable of dealing with these yourself. The application also requires provision of two medical reports, a report by a Mental Health Officer and sometimes and there are, of course, charges for all of this. These charges run into thousands of pounds compared to the few hundred to set up a Power of Attorney.
A Guardianship order is usually only granted for around 3-5 years and then another application will need to be made to the Court whereas a Power of Attorney lasts until it is revoked. There are also additional ongoing annual costs involved for the preparation and examination of accounts and for the provision of an insurance bond known as a Bond of Caution to safeguard the funds which must be renewed annually.
There are proposals which have been put forward to the Scottish Government about streamlining the process for guardianships however it will still involve a longer, more complicated and potentially very stressful time for you and your family if you do not have a Power of Attorney in place.
If you would like to discuss putting in place a Power of Attorney or have any questions on this please contact one of our Private Client Team on firstname.lastname@example.org.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.