Many of us presume that if we were no longer capable of looking after ourselves that our family would be able to step in and make decisions on our behalf. Unfortunately, however, this is a common misconception. In these circumstances, your family do not have any legal authority to do this.
As you can imagine, this has the potential to cause many practical difficulties. For example, if you lose capacity, no one will be able to manage your finances, sell your property or make decisions about your care.
A power of attorney is the solution. A power of attorney must be granted while you have capacity. It allows you to choose a person (or people) to act on your behalf in the event that you unable to make decisions about your finances, property, health or welfare. In short, it gives the people you trust the power to manage your affairs.
There are two types of power of attorney: continuing and welfare. A continuing power of attorney appoints an attorney who can manage your property and financial affairs. A welfare power of attorney on the other hand appoints a person to make decisions about your health and personal care.
If it is too late to make a power of attorney and powers are needed to manage your financial and property matters and/or welfare, there are limited options available. The most common is guardianship. Usually, a family member (or sometimes the local authority if there are no willing family members or close friends) will make an application to the local Sheriff Court to be appointed as your financial and / or welfare guardian. The role of a guardian is very similar to the role of an attorney. However, there are some important differences between powers of attorney and guardianships and these are summarised below:-
Given the costs, delay, inconvenience, unpredictability and stress that is often involved in getting a guardian appointed, we would strongly advise everyone to put a power of attorney in place. This will not only give you peace of mind but it will also make things much easier for your family in the event that you lose capacity.