Guardianship v Power of Attorney

What’s the difference between a power of attorney and a guardianship?

At some point in your life you, or a close family member, may need help making decisions that affect your wellbeing and finances. People can become vulnerable for many reasons, and so the law in Scotland has certain provisions that allow one or more persons to act on behalf of another. You may have heard of a power of attorney and guardianship, but what exactly are they and how do they differ?

A power of attorney and guardianship both fulfil the same function – allowing a person or persons to look after the financial and/or welfare matters of another. However, there is one big difference; a power of attorney can only be granted from an individual who can understand and explain their wishes and who is considered to have capacity, whereas a guardianship applies when a person does not have capacity to make decisions on their own behalf.

Power of attorney

A power of attorney is document usually drawn up by a solicitor, which names the person or persons you wish to help make decisions and take action on your behalf. You can name more than one person, although they should always be someone that you trust, such as a family member or friend, or in some cases your solicitor.

The solicitor must certify the document, but they must interview you before they do so, to make sure that you understand what you are doing and you are not being influenced by someone else.

Types of power of attorney

There are two types of power of attorney; ‘continuing power of attorney’ which relates to your financial affairs. It can start immediately or you can choose it to begin if you become incapable.

‘Welfare power of attorney’ allows the person you have nominated to make welfare decisions on your behalf, but they cannot do so until you have lost the capacity to make these decisions yourself. It is up to you to decide how that incapacity is determined, it may be by one or two medical professionals certifying that you have lost capacity.

Guardianship

While a power of attorney is drawn up by a solicitor, a guardianship has to be applied for through the courts. A guardianship is for a fixed period of time – usually for three years (unless a good reason can be shown why it should be longer) – whereas a power of attorney stays in force unless it is revoked by the person who granted it, or they die.

If you are applying for a guardianship order over someone – usually a close adult family member you believe is unable to make decisions for themselves – you should get legal advice to make sure the appointment will benefit that person and it is appropriate under the circumstances.

Applications for guardianship are made to the local Sheriff Court in the area in which the vulnerable adult lives. Your application will include a list of the powers you need to allow you to look after the adult’s affairs, such as finances, property, medical treatment, and personal welfare.

The application must be supported by medical reports and possibly a further report by a mental health officer from the local council, depending on the types of powers you are seeking. This is all necessary to make sure vulnerable people are not exploited and that you or any other applicant has the best interests of the person at heart.

Granting a power of attorney or applying for a guardianship is a very personal matter, and good legal advice is imperative. McSherry Halliday’s team of expert solicitors can help guide you through the process compassionately and effectively.

This month McSherry Halliday staff will be taking part in Scotland’s Memory Walk for Alzheimer’s. To find out more visit https://memorywalk.alzscot.org/