Most people are familiar with the concept of Powers of Attorney – a written document which gives power to a chosen trusted friend, family member or professional advisor, to attend to our affairs in our steads. This may be useful if the granter is elderly, infirm or is otherwise disabled to the extent that they are unable to get out and about to deal with their affairs. To be able to grant a Power of Attorney, one must have mental capacity.
Prior to 2000, and the coming into force of the Adults with Incapacity (Scotland) Act, Powers of Attorney automatically came to an end when the granter became incapable, perhaps through stroke, head injury, or dementia. A Power of Attorney therefore came to an end, at a time where it was needed more than ever. Accordingly, the Government took steps and, Powers of Attorney now continue beyond incapacity, to enable Attorneys to continue to attend to the affairs of their loved ones, friends and clients until the granter's death.
If there is no Power of Attorney in place before one becomes incapacitated, an application for Guardianship requires to be made at the Sheriff Court. Medical and other information requires to be obtained and an assessment of the prospective Guardian is carried out by the Local Authority. The biggest challenge where a Guardianship Order is required, is the length of time it takes to be granted.
Due to stretched resources in the Local Authority, applications can take many months to conclude and until then, no one is able to deal with the incapacitated adult's affairs. Applications for Guardianship can also be contested by interested parties such as other family members, and those who may have been chosen as Attorneys, may not be appointed as Guardians. The assistance of a Solicitor will be essential and although, happily, Legal Aid is available in all cases, the delay and uncertainty of outcome in the process, can bring additional stress, when one is already be caring for, or arranging the care, of an incapacitated adult.
Accordingly, second only to making a Will, considering granting a Power of Attorney is one of the most essential steps we should all take.