When you, or someone close to you, has been diagnosed with a deteriorating health condition thinking about day-to-day practicalities can be difficult, for example managing finances.
To allow someone to manage your day-to-day banking (but not open or close accounts or apply for overdraft) can be arranged by means of a Third Party Mandate. The account holder signs a mandate allowing the third party to pay bills and assist in managing the account on a day-to-day basis. This type of arrangement is suitable for someone who has physical difficulties carrying out these tasks and has no issues with their capacity and making decisions for themselves.
Where a person is deemed not to have capacity or have been diagnosed with a condition which means their capacity will be reduced/impaired in the future, for example the later stages of dementia, a Third Party Mandate is not appropriate. A person does not have mental capacity if they cannot understand, recall and act on information and therefore cannot make decisions for themselves. In these circumstances it may be more appropriate to grant a Continuing Power of Attorney as a protective measure. This means you decide who you will appoint as your Attorney to manage your affairs in the event you cannot do so yourself in the future. Like a Third Party Mandate, you can also authorise your Continuing Attorney to manage your finances where you are not physically able to do so yourself. The Power of Attorney document must be registered with the Office of the Public Guardian (Scotland) before it can be used. You can also authorise an Attorney to make decisions about your personal welfare (where you live, what care or services you will receive, medical treatment, dental treatment etc.). The Attorney can only make decisions about your personal welfare if/when you lose capacity, which may be never.
Where a person lacks capacity and has not made arrangements for someone to manage their property and finances or personal welfare an application requires to be made to the Court to have someone appointed as Guardian. Like a Power of Attorney, the Guardian can make decisions relating to finances and welfare. The appointment of a Guardian is a court procedure and can take anywhere between around 6 months to 18 months.
Where an incapable Adult’s affairs are simple it may be appropriate to make an application for Access to Funds through the Office of the Public Guardian (Scotland). This may be for paying day-to-day expenses such as utilities, toiletries etc. If the person’s affairs are more complex (i.e. own property/investments) this is unlikely to be an appropriate course of action.
If you are worried about the actions or decisions of a Continuing Attorney or a Financial Guardian you can raise concerns with the Office of the Public Guardian (Scotland). If you are worried about the actions or decisions of a Welfare Attorney or Guardian you can raise concerns with the Local Authority Social Work Department and the Mental Welfare Commission for Scotland.
Should you have any queries about the protective measures to put in place to safeguard you/a family member or require additional information or advice on progressing with a guardianship order, access to funds or are seeking advice on acting as an Attorney or Guardian, a member of our Adults with Incapacity Team/Private Client Team will be happy to assist.