There are many reasons why an adult may not have, or may lose, the capacity to make their own decisions. Many of us are familiar with elderly family members suffering from ill health who cannot manage their own finances or personal affairs as they once did. Equally, some adults are involved in accidents which impair their decision-making ability rather suddenly.
The law recognises that there are good reasons why friends and family may need to step in to make sure that a loved one is well cared for. Two of the key ways this can be achieved are by obtaining a Power of Attorney or Guardianship Order.
We provide an overview of both of these processes below. While it may seem daunting, our solicitors are able to support you and advise on Powers of Attorney and Guardianship Orders, which will allow you to act in the best interests of your loved ones.
Powers of Attorney
A Power of Attorney is a document prepared by an adult with full capacity, planning for their future. It is therefore important to put a Power of Attorney in place while you are still mentally and physically able to do so. You can have a solicitor draft a Power of Attorney to provide for who will take care of your personal affairs when you no longer can. There are two main types of Power of Attorney; a Continuing Power of Attorney, which deals with financial matters, and a Welfare Power of Attorney. You can also have a combined Power of Attorney which regulates both. We can also discuss with you the types of powers you wish to include and when and how those powers should be used.
We understand how important it is to have the right people looking after you and your finances and our team of experts at Stuart & Stuart can help you to achieve that. You decide who you would like to appoint as your Attorneys but we can give you guidance if you have any concerns or queries as to who that should be. Trusted friends and family members are an obvious choice but you should also check with them that they are willing to take on the responsibility.
It is necessary for a solicitor or doctor to sign a certificate to state that a person has the capacity to grant a Power of Attorney, which is incorporated into the Power of Attorney document. Our solicitors will be able to sit down with you and ensure you have peace of mind that your affairs will be taken care of in the event of your incapacity.
If you have been appointed as an Attorney, we can help to guide you in you in your acting and decision making, supporting you in your role.
If a person no longer has capacity to grant a Power of Attorney, it might be possible for the Court to grant an Intervention Order to deal with a certain aspect of the person’s affairs. An intervener can be granted authority to deal with a single action or to make a number of decisions on behalf of a person who has lost capacity. For example, authority might be granted to sell a home or to decide what type or course of medical treatment is best for that person at a particular time.
A Guardianship Order is a court order appointing a person to make decisions for an adult who lacks capacity and is therefore incapable of granting a Power of Attorney. The Order itself will contain the powers that the Guardian will have, which may be financial or welfare powers, or both. Financial powers might include the ability to operate the person’s bank account or to prepare tax returns. Welfare powers grant authority to look after the health and wellbeing of the adult who lacks capacity. Welfare powers can include deciding on care arrangements and consenting to medical treatment. An Order will be granted for a set period of time.
Any person can apply to become a Guardian – this could be a family member or carer or a professional such as a solicitor. Guardianship Orders may be suitable in many situations. For example, if you are the parent to a young adult who lacks capacity, a Guardianship Order can be used to help you manage their financial affairs.
It can be challenging to know how best to support a family member without capacity. Our solicitors are able to offer advice on when a Guardianship Order may be appropriate and what powers will be necessary. We will then guide you through the application process, obtaining the necessary reports and representing you during the hearing to decide on the Guardianship Order.
Clients often ask us to assist in preparing Living Wills or an “Advanced Medical Directive” to set out their wishes in relation to end of life care. The document would set out your thoughts on what types of treatment you might wish to receive (or not) if you are incapacitated. It could also indicate a wish to be kept pain free but perhaps without being kept alive by artificial means. While the legal status of such documents is not necessarily binding in Scotland and with care always medically led, it can be of benefit to the medical attendants who will be providing and managing your care. Perhaps the greatest benefit can be seen as giving peace of mind to your loved ones and Attorneys who might be faced with making difficult decisions regarding your care in circumstances where you are no longer able to indicate your wishes.
Contact our Adults with Incapacity Solicitors in Edinburgh, Bonnyrigg and Penicuik
At Stuart & Stuart, we understand that these issues need to be handled professionally and with sensitivity. Incapacity law can be complex and it can be difficult to know how and when to plan for your future. Fortunately, our private client practice in Edinburgh, Bonnyrigg and Penicuik has a wealth of expertise to lead you through this process.