Powers of Attorney and Guardianship are often confused and I am regularly asked for advice on which is more appropriate. So Power of Attorney vs Guardianship, what's better? Although both concepts are regulated by the Adults with Incapacity (Scotland) Act 2000 and have similar effects, there are significant differences between the procedure for each.
What is a Power of Attorney?
A Power of Attorney is a legal document appointing someone to act for and make decisions on behalf of the granter. The Power of Attorney can cover financial matters only (e.g. dealing with bank accounts); welfare matters only (e.g. deciding on appropriate care/accommodation); or both financial and welfare matters.
A person can only grant a Power of Attorney if he/she has capacity - this means an individual must be capable of understanding and explaining their wishes.
Once the deed is signed and registered with The Office with the Public Guardian, it remains in force until it is either revoked by the granter or until death.
What is Guardianship?
Similarly, Guardianship orders appoint someone to act on another's behalf and can cover financial matters only; welfare matters only; or both financial and welfare matters. However, Financial and/or Welfare Guardianship is only appropriate where a person does not have capacity to make decisions on his own behalf and therefore cannot appoint an attorney to act for them.
Guardianship appointments involve an application to the court (usually by a member of the adult's family) and, after considering the application and required reports, the Sheriff decides whether to grant the application. The procedure is lengthy (actions generally take 6 months from beginning to end) and complex.
Guardianship appointments are usually for a period of 5 - 10 years, unless it can be shown there is good reason to grant the appointment for a longer period.
What do I need to know?
Powers of Attorney can only be granted by someone who has capacity; Guardianship orders are only appropriate for those who have already lost capacity. We encourage clients to grant Powers of Attorney while they still have capacity as a safety net for the future.
Should you wish further information on power of attorney vs guardianship, or in relation to your specific circumstances, please contact our team.