A Power of Attorney allows someone you trust to make decisions on your behalf if you become unable to make those decisions yourself. However, not everyone has one in place before illness, injury or another change in circumstances affects their ability to manage their own affairs.
When this happens, families can understandably assume that a husband, wife, partner or adult child will simply be able to step in. In Scotland, this is not automatically the case.
If someone has lost capacity and there is no valid Power of Attorney already in place, it may be necessary to use one of the legal measures available under the Adults with Incapacity (Scotland) Act 2000.
The most appropriate option will depend on the person's circumstances and the decisions that need to be made.
What Does Losing Capacity Mean?
Capacity is not necessarily an all-or-nothing issue.
Someone may be capable of making certain decisions but not others. For example, a person may still be able to make straightforward choices about their daily life while being unable to understand or manage complicated financial matters.
A diagnosis such as dementia does not, by itself, mean that somebody lacks capacity. In Scotland, adults are generally presumed to have capacity unless there is medical evidence to establish otherwise.
Someone's ability to make decisions may be affected by conditions such as dementia, a brain injury, learning disability, stroke or another illness. Under Scottish law, incapacity means the inability to:
(a) act; or (b) make decisions; or (c) communicate decisions; or (d) understand decisions; or (e) retain the memory of decisions.
Can a Power of Attorney Be Created After Capacity Has Been Lost?
A person must have sufficient capacity to grant a Power of Attorney.
If they are no longer able to understand what a Power of Attorney is, the powers being granted and the consequences of granting them, it will- be too late to put one in place.
This is an important reason why Powers of Attorney are usually best considered in advance rather than waiting until somebody begins to experience difficulties managing their affairs.
If there is uncertainty about whether the person still has sufficient capacity to grant a Power of Attorney, legal and medical advice may be required before deciding what to do next.
Can a Family Member Automatically Take Over?
No.
Being someone's spouse, civil partner, child or other close relative does not automatically give you legal authority to access their bank accounts, manage their property or make welfare decisions on their behalf.
This can come as a surprise to families, particularly if they have already been providing practical support.
For example, a bank may not allow a relative to access funds simply because the account holder is no longer able to manage the account themselves. Similarly, important decisions regarding property, finances or welfare may require specific legal authority.
What happens next depends on the type and extent of support required.
What Is an Intervention Order?
An Intervention Order may be suitable where a specific decision or one-off action is required rather than ongoing authority.
An application is made to the Sheriff Court.
For example, an Intervention Order might be used where authority is required to deal with a particular property transaction, sign a legal document or make a specific decision regarding the adult's welfare.
The powers granted are tailored to the action or decision that needs to be taken.
Once that particular matter has been dealt with, ongoing authority may no longer be required.
This makes an Intervention Order different from Guardianship, which is generally more appropriate where continuing decisions will need to be made.
When Might a Guardianship Order Be Needed?
A Guardianship Order may be required where somebody lacks capacity and another person needs ongoing authority to manage aspects of their life.
A guardian can be given powers relating to:
- Financial affairs
- Property
- Personal welfare
- A combination of these areas
The exact powers required will depend on the adult's individual circumstances.
For example, financial powers might be required to manage bank accounts, bills and other assets. Welfare powers might be needed to make decisions relating to care, support or accommodation.
An application for Guardianship is made to the Sheriff Court and requires supporting reports, including medical assessments of the adult's capacity.
If the court is satisfied that Guardianship is necessary and appropriate, it can appoint a suitable person as guardian and specify the powers they are permitted to exercise.
Does Guardianship Remove All of the Person's Decision-Making Rights?
A Guardianship Order should not simply give another person unrestricted control over every aspect of someone's life.
The Adults with Incapacity (Scotland) Act 2000 contains principles designed to protect adults whose affairs are being managed by somebody else.
Any intervention must benefit the adult and should only be taken where that benefit cannot reasonably be achieved without intervention. The option chosen should also restrict the adult's freedom as little as possible.
The person's past and present wishes and feelings should be taken into account as far as they can be established, along with the views of relevant people involved in their care and welfare.
The aim is therefore to obtain the powers that are genuinely required rather than seeking wider authority than is necessary.
Who Can Apply for Guardianship?
An application can be made by someone with an interest in the adult's property, financial affairs or personal welfare.
In many cases, this will be a family member or someone else who has a close relationship with the adult.
The local authority can also become involved where Guardianship is necessary to protect an adult and nobody else is making, or is likely to make, an appropriate application.
The proposed guardian must be considered suitable for the role, and the Sheriff Court will consider the circumstances before deciding whether an order should be granted.
How Long Does the Process Take?
Unlike a Power of Attorney arranged in advance, obtaining authority after someone has lost capacity usually requires a more formal process.
A Guardianship application requires assessments, preparation of the appropriate court documents and requires to be granted by the Sheriff if satisfied that it is in the bests interests of the person who has lost capacity.
This means there can be a period where family members know that help is required but do not yet have the authority to make certain decisions.
Seeking advice as soon as it becomes clear that someone is struggling to manage their affairs can help establish which legal route is appropriate and avoid unnecessary delays.
Why Is Making a Power of Attorney in Advance Important?
The situation highlights one of the main reasons for creating a Power of Attorney while you still have capacity.
A Power of Attorney allows you to choose who you would want to manage your affairs and decide what powers they should have.
Without one, your family may need to apply for legal authority after capacity has already been lost. This can involve additional time, expense and court procedures at what may already be a difficult period.
Making a Power of Attorney does not mean giving up control of your affairs. Instead, it provides a plan for how decisions can be managed if you need support in the future.
How Can d and h Help?
If a loved one has lost capacity without a Power of Attorney in place, it is important to establish what authority is actually required before deciding on the next step.
At d and h, our solicitors can advise families when someone has lost capacity and there is no suitable Power of Attorney in place. We can help you understand whether Guardianship or another legal option may be appropriate and guide you through the next steps.
We can also help you put a Power of Attorney in place for your own future, giving you greater control over who would manage your affairs if you were ever unable to do so yourself.
If you need advice about capacity, Guardianship or Powers of Attorney in Scotland, contact d and h to discuss how we can help.