Welfare MATTERS - March 2019
In this edition we hear from some of our team about applications for Guardianship (which are required when somebody is unable to manage their own affairs and they have not granted a Power of Attorney) and what you can do to ensure your wishes are taken into account when decisions are being made about any end of life care you may receive. Catriona Torrance reflects on Dementia Awareness Week and Alzheimer Scotland’s Annual Conference and we have a round-up of some of the latest news from across the firm.
We hope you find it interesting!
In this edition
When we meet our clients to prepare wills or carry out other business, we encourage them to consider granting a power of attorney. This would allow a person (or indeed people) of the client’s choosing to manage their welfare and financial affairs if they were ever unable to do so. However, a power of attorney can only be granted if the person granting it has what is called ‘mental capacity’ – the ability to make an informed decision and appreciate the consequences of that decision. What can be done when a person has lost capacity, perhaps due to a diagnosis of dementia or another serious illness affecting their mind, and there is a need for ongoing management of their finances or welfare?
The answer is guardianship - a process in which a court appoints someone to look after the welfare and/or financial and property affairs of another person who has lost capacity to do so themselves. The law behind guardianships is based around the principle of encouraging individuals to use any capacity they have and using minimal intervention in their affairs. These principles must always be kept in mind when considering the need for guardianship.
Who can be a guardian?
Any individual who is aware of the individual’s circumstances and condition, and aware of the needs arising from their circumstances and condition, can be appointed as a guardian. The typical people who may wish to be appointed are the person’s spouse or partner, their children or their siblings. The final decision on who will be guardian is left to the court. This is unlike a power of attorney where the person concerned can choose to appoint anyone they wish, for example close friends or more distant relatives.
What is the process?
All guardianship applications that include welfare guardianship can currently receive automatic legal aid funding. Once funding is in place, the local council for the area the person lives in is notified and asked to appoint a mental health officer to them. That officer will prepare a report on the appropriateness of guardianship and the suitability of the people who are applying to be guardians. At the same time, two medical practitioners will meet the person concerned and prepare reports on their mental capacity. One of these reporters needs to be a consultant psychiatrist, while the other is typically the person’s GP.
The application is sent to court once all three reports are obtained. Once the court have confirmed that they will hear the application they will order that the application and supporting reports are sent to individuals or organisations who are deemed to have a legal interest in the application. Those individuals and organisations will typically include close relatives of the person concerned, any allocated social worker, the Office of the Public Guardian, the local council and the Mental Welfare Commission. A court hearing will then set. The hearing gives the sheriff the opportunity to consider the application in detail and hear from the applicants via their solicitor. The sheriff may decide to grant the guardianship order or perhaps order further procedure if any parties oppose the guardianship application.
What are the alternatives to guardianship?
As mentioned above, the legislation behind guardianship orders is underpinned by a principle of minimum intervention. This means they cannot be used when there is another way to achieve the same results for the person concerned.
It is possible to apply for Access to Funds where authorisation is needed to access somebody’s bank account in order to pay bills, ongoing care fees and other day to day expenses. Likewise if somebody’s income is restricted to state benefits it is possible for another person to be appointed as their DWP Appointee with power to receive their benefits and spend them on their behalf.
However, the appointed person acting under Access to Funds or DWP Appointeeship would not be legally authorised to make decisions on welfare matters such as where the person should live.
Where somebody’s affairs are more complex, for example their estates contain property or substantial investments, an intervention order may be used. This authorises an individual to carry out certain one-off acts on behalf of an Adult. This may include selling their house or signing forms that agree to where the Adult should live. As an intervention order is more suited to a specific action that does not need to be repeated, if on-going management of an Adult’s affairs is anticipated then a guardianship application should be considered.
What are the potential issues with guardianship?
Choice of people holding the power
With a power of attorney, the individual is able to choose exactly who they would like to look after their affairs and ensure that they are able to act when they choose or when they have lost capacity. As mentioned above, guardianship applications oblige applicants to prove the nature of their relationship to the person concerned and it is ultimately the court which decides who will be guardian. The end result may be that the chosen guardian or combination of guardians may not be the same person they would have chosen to be their attorney(s).
Time taken to obtain the order
Another issue is that the speed of the application depends on factors such as the allocation of a Mental Health Officer by the council. Waiting times for the allocation of Mental Health Officers have reached around 12 months for some local councils, although if the need for guardianship is deemed urgent then an allocation can be made quicker. This is unlike a power of attorney, where some powers can be activated as soon as they are needed.
This ties in to the concern that the application can be a drawn-out process for the individuals applying to be guardians. A situation where a loved one has lost their mental capacity is likely to be extremely stressful and the practical and legal difficulties encountered when waiting for the necessary authorisation to be granted can add to the strain.
Although many guardianships will be funded by the Scottish Legal Aid Board, not all applications are entitled to funding and there is no guarantee that funding will remain available with increasing pressure on public resources and legal aid. Unless funding is available it is more expensive to apply for a guardianship order than it is to grant a power of attorney.
Our dedicated team of solicitors will be happy to assist should you have any further questions about powers of attorney or guardianship. Should you wish to discuss your own circumstances please contact either James Hyams or Elizabeth Sparks on 0131 200 1200.
What can you do during your lifetime to ensure your wishes are taken into account in any end-of-life care?
Living will or Advance Directive
One of the options is to put a living will, which is sometimes referred to as an Advance Directive, in place. This is a document that states what you would wish to happen should you ever suffer from conditions such as severe and lasting brain damage, advanced degenerative disease or dementia. In the living will you can state that you do not wish your life to be artificially prolonged by life support machines or tube feeding or other treatment if you suffer from one of the listed conditions. Although not legally binding in Scotland, living wills are a way of communicating your wishes and views to your family, friends and the medical profession in the event you were unable to communicate them yourself.
Once a living will is signed a copy should be kept with your GP as well as with your will and other important documents. A living will should be re-signed each year, even just at the bottom of the document, so as to ensure that there can be no ambiguity that the living will represents your current feelings. The argument being if you signed a living will a number of years ago, your wishes may have changed since it was signed.
Power of attorney
Another option that ensures your wishes are taken into account during any end-of-life care is to put a power of attorney in place. A power of attorney covers both financial and welfare matters and it is the welfare part that allows your attorney, who is somebody that you have chosen, to make medical decisions on your behalf when you are unable to. It is important that you appoint somebody that you trust to carry out your wishes and that you discuss this with them. Should the power of attorney ever be required then they will have the authority to make those welfare decisions on your behalf.
The welfare powers in a power of attorney would only come in to place if you were to ever lose mental capacity. Your attorney would not be able to make these decisions, which include where you should stay, if you had capacity, it is only if you were ever to lose capacity that they would be able to use them. It often gives your welfare attorney peace of mind if you have previously granted a living will as they can be clear on your wishes for any end-of-life care.
A power of attorney lists all of the powers that your attorney will have. The document must be signed in the presence of a doctor or solicitor who confirms that the person signing the power of attorney has sufficient capacity to understand what they are signing. This is then registered with the Office of the Public Guardian and the registered copy is kept by the granter until it is needed.
Should you wish to discuss any of the matters raised above please contact reception on 0131 200 1200 and ask to speak to a member of our private client team.
We were delighted to play our part in Alzheimer Scotland’s Dementia Awareness Week, a week full of positivity although not shying away from addressing difficult issues too. People can and do live well with dementia and it is very encouraging to see so many different initiatives at local and individual level supporting people to do just that. Fiona Shand and Catriona Torrance attended Alzheimer Scotland’s Annual Conference and saw first-hand how technology is being developed specifically to help people with dementia in their everyday lives, and to support their carers. Discussions also centred on national healthcare policies and how this feeds down to the experience of people with dementia. And we took part in sessions led by people with dementia talking about local, community based initiatives which can make all the difference in maintaining a sense of self and independence.
There is a notable shift of emphasis to include carers’ wellbeing, how to make sure they have the resources they need, whether it’s access to medical assistance and help with sourcing equipment, or respite for the carers to allow them time to look after themselves. It’s important to recognise that caring can be hard work and without carers at home, people living with dementia might lose their independence. One woman spoke about how if she’d had just one or two weeks of respite from caring for her husband, she would have been able to take better care of herself and continue to care for her husband at home. But because this wasn’t available, she became completely exhausted, concerns were raised about her own mental wellbeing, and the decision was taken to move her husband into permanent residential care.
We can all play our part in raising awareness of dementia, taking stock of how we interact with people living with dementia on an everyday basis, and discussing with carers whether there’s anything they need to support them too. Balfour+Manson has pledged to train all staff to become Dementia Friends, something which we will continue with all new staff when they join us. We had a fun day in the office with our Bakes and Books sale, including a raffle of books signed by the author Ian Rankin, raising funds for Alzheimer Scotland and Lingo Flamingo. And we take with us the practical and positive outlook of supporting clients, their carers, family, and friends to live well with dementia.
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