Often people will ask – what is the difference between a power of attorney and guardianship or if one is better than the other? Our simple guide below explains the difference.
Power of Attorney
Power of attorney is a legal document which you (“the grantor”) grant in favour of another person (“the attorney”) to make decisions relating to your finances, property and/or welfare. In Scotland this is known as a continuing and welfare power of attorney (lasting and enduring power of attorney in England & Wales). The power of attorney document is only valid during your lifetime. The grantor must have capacity to grant the power of attorney and be aged 16 or over. A solicitor or doctor must sign a certificate verifying the grantor understands the document and has capacity to grant the document. It is a protective document the grantor instructs in the event that they are no longer able to or require assistance in managing their finances or lose capacity to make decisions about their finances and/or welfare. The power of attorney document may never require to be used but is there as a safeguard for the future.
The work of an attorney can, at times, be onerous. Attorneys should be sure of the responsibilities they have. They must comply with guiding principles laid down in legislation when making any decision. There are extensive codes of practice for attorneys which provide guidance on making decisions. For the power of attorney to be operational it must be registered with the Office of the Public Guardian in Scotland. There is a fee payable for the registration costs. Your attorney must sign a declaration to state that they are willing and able to act as your attorney
The main benefits of granting a power of attorney means you are safeguarding your future by ensuring someone you trust can manage your affairs for you if you can no longer do this yourself. You are the person who decides who will make these important decisions for you in the event you can no longer manage your money or have lost capacity to make decisions about your health and welfare. The granting of a power of attorney is a fairly quick and uncomplicated process.
Guardianship is a court process to provide someone (“the guardian”) with authority to make decisions on behalf of an adult (“the Adult”) who lacks capacity. Where the Adult retains capacity a power of attorney should be sought. The guardianship process can be a long, drawn-out process. There are three reports which require to be obtained and lodged with the application to the local sheriff court. The court then set a hearing date and a sheriff will determine who will make decisions for the Adult, for how long and the type of decisions they can make. There are ongoing reporting requirements for financial guardians during the course of the guardianship application. The local authority will oversee the actings of any welfare guardian. The Office of the Public Guardian in Scotland issue the guardian with their certificate of appointment and oversee the actings of all financial guardians in Scotland. Similarly, any guardian must following guiding principles laid out in legislation before making any decision. There are, again, extensive codes of practice for guardians to provide them with guidance when making decisions.
In Scotland, Legal Aid is available when making a guardianship application or opposing a guardianship application. Not all solicitors are able to offer Legal Aid. You should make enquiries before proceeding about the eligibility for Legal Aid – there are disregards available and automatic grants of Legal Aid in certain circumstances so it is always worthwhile enquiring.
The downside of waiting until the Adult lacks capacity is that should something urgent require to be done no-one has authority to make decisions on the Adult’s behalf until the guardianship order has been granted. This can often be upsetting for family members. The process can be lengthy and if Legal Aid is not granted it can be very expensive. The Adult also requires to undergo three assessments, two by doctors – one of whom must be a psychiatrist – and one by a mental health officer (specialist social worker). It can be a stressful time for the Adult and their family.
There are other forms of intervention available in managing someone else’s affairs. Should you have any queries about power of attorney, guardianship or any other form of intervention please contact a member of our team who will be happy to assist.