Guardianship and Power of Attorney

If someone needs to make decisions on behalf of another, there are two options. Which is suitable depends on whether the adult has already lost capacity, or is planning for the future.

Guardianship : If Someone Has Already Lost Capacity

Guardianship plays a crucial role in safeguarding the welfare and interests of individuals who are unable to make decisions for themselves. In Scotland, the concept of guardianship is well-established, providing a legal framework to support and protect vulnerable individuals. This article explores the meaning of guardianship, the circumstances in which it is sought, and the process of obtaining it.

1. What is Guardianship in Scotland?

In Scotland, guardianship is a legal mechanism designed to provide assistance and decision-making authority for adults who lack the capacity to make important life decisions due to mental incapacity, learning disabilities, or other impairments. It is primarily governed by the Adults with Incapacity (Scotland) Act 2000.

The primary goal of guardianship is to promote the well-being and interests of individuals who are unable to make decisions regarding their personal welfare, finances, or property matters independently. By appointing a guardian, the individual's rights are upheld, and decisions are made in their best interests.

2. When is Guardianship Sought?

Guardianship may be sought in various situations, including:

a) Cognitive Impairment: Guardianship is often sought when an individual experiences a decline in cognitive abilities due to conditions such as dementia, Alzheimer's disease, or acquired brain injuries. If the person cannot make decisions independently or manage their affairs, guardianship may be necessary.

b) Learning Disabilities: Individuals with severe learning disabilities may require guardianship to ensure their welfare and decision-making are appropriately managed.

c) Mental Health Conditions: In cases where a person's mental health condition impairs their ability to make sound decisions, guardianship may be sought to protect their best interests.

3. How Can Guardianship be Obtained?

The process of obtaining guardianship in Scotland is complex and involves several steps:

a) Application: An individual, such as a family member or concerned party, must apply to the Sheriff Court for guardianship. This should be done with the assistance of a solicitor. The application will include details of the proposed guardian, the reasons why guardianship is necessary and what powers are being sought e.g to deal with bank accounts, make payments, decide what care is needed, who the adult can have contact with, decide whether residential care is appropriate etc.

b) Medical Assessment: The court will require a medical assessment by a qualified professional to ascertain the person's incapacity and their need for a guardian.

c) Reports: Reports from other relevant professionals, such as social workers or psychologists, may be requested to provide a comprehensive understanding of the individual's circumstances and needs.

d) Investigation: The court may investigate the proposed guardian's suitability, ensuring they have the necessary skills and commitment to act in the individual's best interests.

e) Court Hearing: The court will hold a hearing to consider the evidence presented and make a decision on the guardianship application.

f) Appointment and Ongoing Monitoring: If the court approves the guardianship, the guardian is appointed and granted specific powers and responsibilities. The Mental Welfare Commission and Local Council will be made aware of the appointment. The court also has the power to revise or revoke powers of a guardian.

Power of Attorney: Planning for the Future

A power of attorney is a legal document that grants authority to another person, known as an attorney, to make decisions on your behalf. In Scotland, there are two types of powers of attorney: continuing powers of attorney (CPAs) and welfare powers of attorney (WPAs). Both serve distinct purposes and can be set up to cater to specific needs and circumstances.

Continuing Powers of Attorney (CPAs):

A CPA allows you to appoint someone to handle your financial and property affairs. This could include managing bank accounts, paying bills, buying or selling property, and making investments. CPAs can come into effect immediately or be designed to activate only when you lack the capacity to make decisions yourself.

Welfare Powers of Attorney (WPAs):

On the other hand, a WPA grants an individual the authority to make decisions concerning your personal welfare, including healthcare, medical treatment, and accommodation. WPAs can be particularly valuable in ensuring that your wishes and preferences are respected should you become unable to communicate or make decisions regarding your own care.

Obtaining a Power of Attorney in Scotland:

To establish a power of attorney in Scotland, certain steps need to be followed. These typically involve the following:

1. Choosing an Attorney:

Select someone you trust implicitly to act in your best interests and carry out your wishes. It could be a family member, friend, or a professional such as a solicitor. It is crucial to discuss your intentions with the individual beforehand to ensure their willingness and suitability for the role.

2. Completing the Relevant Forms:

Our solicitor will begin by preparing your Power of Attorney, which will list the criteria required for the powers to activate; as well as the specific powers they will have.

After this is signed, we will complete the Office of the Public Guardian Scotland forms and register the POA with them. The forms differ depending on whether you are creating a CPA, WPA, or both.

3. Certificate of Capacity:

To ensure that you have the mental capacity to create a power of attorney, we must obtain a certificate of capacity. This certificate confirms that you understand the nature of the document and the implications of granting power to someone else. Our solicitor or a doctor can provide this certificate.

4. Registration:

Once the forms are completed and the certificate of capacity is obtained, we will register the power of attorney with the Office of the Public Guardian Scotland. Registration ensures the validity and authenticity of the document and prevents any misuse or fraud. A registration fee is applicable.

5. Informing Relevant Parties:

Inform your attorney, family members, and any other relevant individuals about the existence and details of your power of attorney. This will ensure that everyone is aware of the arrangement and can support the decisions made by your attorney when necessary.

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