Power of Attorney and Guardianship
What is ‘incapacity’?
The law assumes that anyone over the age of 16 is capable of making decisions and managing their own affairs. For people with certain disabilities, injuries or illnesses, that may not be possible. Where someone is unable to act, communicate, understand or remember decisions then they are considered to lack capacity.
When a child turns 16 or an adult loses capacity, families often feel there should be an ‘easy’ way for them to take over decision making for that person. the thought of having to make a formal application can be daunting. However, the procedures are there to protect everyone’s rights and with good support, the process is normally straightforward. The Adults with Incapacity (Scotland) Act 2000 offers a range of options to give others authority to act or make decisions for another adult.
Powers of Attorney
In general, a Power of Attorney (POA) is used to provide for the situation where someone might become unable to make decisions in the future due to illness or injury.
People often assume that important decisions about money, care or medical treatment could be taken by their partner or ‘next of kin’ or their primary carer. However, no one has an automatic right to make decisions on someone else’s behalf unless they have been legally appointed.
The key thing to remember about a POA is that you can’t ‘take out’ a POA in relation to someone else. It’s something that must be granted to you by the individual at a time when they have the capacity to understand the document they are signing.
If someone has never had the capacity or they’ve lost the capacity to make decisions for themselves and they haven’t previously granted a POA, they might need what is called a Guardian to make decisions on their behalf.
Guardianship Orders can be granted to authorise someone to be responsible for property, finances and/or matters relating to an adult’s personal welfare. Sometimes an application will be triggered by a certain event, eg. authority is needed to sign a tenancy agreement on the adult’s behalf and sometimes it’s simply because the adult’s carers or relatives want to have a central role in the decisions being made about them.
Before applying for a Guardianship Order, you should seek legal advice to make sure the appointment will benefit the adult and is appropriate under the circumstances.
An Intervention Order is similar to Guardianship except it is used for one-off events or a short series of, decisions or actions.
Further Help and Information
In the first instance, you should seek your own legal advice or more information is available at:
Office of the Public Guardian (Scotland)
Callendar Business Park
Falkirk FK1 1XR
Tel: 01324 678300