There are often misconceptions surrounding powers of attorney as well as how they differ from guardianships. We have sought to address some of the common concerns below to help demystify the issues involved.
Power of Attorney
A power of attorney is a document which you put in place to authorise someone you trust to act on your behalf if you cannot make decisions for yourself. Powers of attorney are not only sensible for the elderly or for those who require assistance with their affairs due to illness, but for anyone as they may be needed at any time as a result of an accident or unforeseen illness. A power of attorney is an important legal document which should be considered as part of your estate planning and Will review.
Types of Powers of Attorney
The types of powers of attorney are:
Continuing powers of attorney which include financial powers and powers relating to property. Continuing powers can come into effect as soon as your power of attorney is registered and continue if you lose capacity in the future.
Welfare powers of attorney allow your attorney to make decisions relating to your welfare and health. These powers can only be used by your attorney if you have lost capacity to make such decisions.
It is possible to grant a power of attorney which includes both continuing and welfare powers.
A simple power of attorney would be one where specific powers are granted relating to financial and property powers, but which does not meet the requirements to be ‘continuing’ and would therefore end on incapacity.
Crucially, a power of attorney gives the granter the opportunity to choose their attorneys, to decide which powers to grant and to revoke the power of attorney at any time. A sense of autonomy and control is therefore retained throughout the process.
In order to avoid future complications if you become unwell, it is advisable to put a power of attorney in place at the earliest opportunity, even though it may not be required at present.
It is important that powers of attorney are put in place while you have the capacity to do so. If someone has lost capacity to understand what a power of attorney is, it cannot be put in place at that point. If a person has lost capacity and needs decisions to be made for them or actions taken on their behalf, a guardianship application may be required.
Guardianship
Unlike a power of attorney, a guardianship order is a court appointment of someone to manage the finances/property and welfare affairs of an individual who can no longer make such decisions for themselves. Guardianships are most often sought by family, friends or the local authority. It is often assumed that a person’s spouse or next of kin will be able to step in and make decisions if they become unwell. Unfortunately, this is not the case and no one has automatic powers to act on your behalf.
Guardianship orders can include welfare and financial powers. However, as part of the court procedure, it will require to be demonstrated why each requested power is needed. The flexible and wide-ranging powers which are contained in a power of attorney are often lost as a result.
In a guardianship case, it is for the court to decide who is considered to be a suitable guardian and for how long the guardianship should be granted for, which is often for the duration of a 3 to 5 year period.
In practical terms, a Power of Attorney is a fairly quick and cost efficient way of ensuring that your affairs will be dealt with as you would wish if you are unable to do so. Guardianship applications on the other hand are more time consuming and can amount to considerable costs.
Contact Us
Our Personal Law solicitors can advise on powers of attorney and can assist with guardianship applications. Contact us for more information.
DISCLAIMER
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland