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How to protect elderly relatives with a Power of Attorney or Guardianship

How to protect elderly relatives with a Power of Attorney or Guardianship

Nobody knows what is round the corner, and to give yourself, and your family, peace of mind, it is important to plan for your future and put in preparations should something happen. An extremely useful document is a Power of Attorney – this is a way of giving someone else permission to make decisions about your money and property, as well as your health and personal welfare, if you are no longer able to make those decisions yourself. This could be down to illness or a sudden accident and you find you lose capacity to make these sort of decisions.

There’s no substitute for peace of mind. And that comes with knowing you’re prepared for the future. Without a Power of Attorney, nobody has an automatic right – not your spouse or your children – to make decisions on your behalf if you can no longer do so yourself. 

Unfortunately, many of us lose our mental capacity as we age due to conditions such as Alzheimer’s or dementia. If someone loses capacity and requires their family to step-in, without a Power of Attorney, they would have to apply to the Court for a Guardianship. At Ness Gallagher we see this scenario regularly when for example an elderly person needs to go into a care home however their family don’t have the authority to make that move for them.

The difference between a Power of Attorney and a Guardianship is that with a Power of Attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian. Therefore for your own peace of mind it is worth appointing someone you trust to safeguard your wishes and make medical decisions and handle your affairs for you via a Power of Attorney rather than leaving it for the Courts to give someone that authority.

Anyone with an interest can make an application for a Guardianship order but it can be a lengthy and costly process, and often comes at an already stressful time. There are a variety of different types of decisions and powers that can be granted via a Guardianship, including:

  • Financial – powers in relation to the finances and property belonging to the adult e.g. dealing with bank accounts, paying bills and managing any claims to benefits that the person is entitled to.
  • Welfare – powers in relation to making welfare decisions for the person e.g. consent to medical treatment on their behalf, or making day-to-day decisions relative to their care.
  • Combinations of financial / property and welfare – often a guardianship will cover both areas but when determining what powers should be granted, the Courts will consider the least intervention required to benefit the adult.

Based on the adult’s condition and circumstances, the Sheriff will decide how long the Guardianship order should last. Generally orders are granted for a period of 3 years however it might be granted for a longer period of time or indeed for the lifetime of the adult.

If you find yourself in a situation whereby you need to make decisions on behalf of a loved one, but they do not have a Power of Attorney in place, then please speak to us and we can help you with the Court application for a Guardianship.