Increase in Guardianship Orders and the importance of Powers of Attorney

27/09/2018

The Mental Welfare Commission for Scotland have today announced that the number of Guardianship Orders rose by 12% in the last year to 13,501. They continued by stating that the process is complex, time consuming and in need of reform.

Guardianships are required for Adults (anybody over the age of 16 in Scotland) who are unable to manage their financial or welfare affairs themselves. Guardianships are a court process where a relative, carer or friend of the Adult applies to be appointed as Guardian for the Adult. The Guardian, once appointed, is then responsible for the welfare and/or financial matters in respect of the Adult. As the Adult is not able to give instructions as to who they wish to appoint, a number of reports are required to assess the suitability of the proposed Guardian and also to confirm the Adult’s incapacity.

In the Edinburgh region, a Mental Health Officer, who prepares the suitability report, is currently not being allocated for approximately 9 months. Considering the steps involved before and after this, it means that the Guardianship process is taking approximately 12 months.

This delay can cause problems as well as the understandable anxiety of not being able to help a loved one. For example, if an elderly parent was suffering from dementia and could no longer live at home then their children may wish to move them into a care home and sell the property to pay for the care home fees. Without a Guardianship, the children do not have the authority to move their parent, to sell the property or to access their parent’s bank account to pay bills.

The delays, problems and anxiety can be resolved by granting a power of attorney. This is a document that gives authority for a person, of your choosing, to manage your financial and welfare affairs should you ever lose capacity. This document can be prepared, signed and registered within a matter of weeks.

The power of attorney document must be signed while you have capacity. This means that you are able to understand the document and its consequences. A solicitor or doctor must meet with the person granting the power of attorney and they sign the document to confirm that the granting the power of attorney has capacity.

We would recommend that you sign a power of attorney as early as possible, it should not be seen as simply something for ‘when I am older’.  A power of attorney can be used when you lose capacity for whatever reason, whether this is from an accident or through illness. The power of attorney provides certainty that somebody will be able to deal with your legal affairs should you no longer be able to do so. It also allows you to choose who that person should be.

In the example above, the power of attorney document would assist as it would give the children the power to make the decisions that are required to ensure that their parent gets the care that they need. They would be able to put their parent into a care home, arrange to sell their property and pay any bills from the parent’s bank account in the meantime.

Granting a power of attorney will help those closest to you should you ever be unable to look after your financial or welfare affairs. It will also give you peace of mind that it is taken care of. Hopefully the power of attorney will never be used but if it is then it will make things significantly easier for the attorney.

If you would like to arrange a meeting with a solicitor to discuss granting a power of attorney, please contact our reception on 0131 200 1283 and ask to speak to a member of our private client team.