This is a question that faces many people, not least those of us who are getting on a bit. The simple truth is that if you don’t take steps to make sure your interests are looked after before you can no longer make decisions for yourself, then someone can be appointed to make those decisions for you.
This might be your spouse or partner or a member of your family, a friend or a professional (for instance, a solicitor). But it can just as easily be someone from your local authority’s social work department.
That person is called a guardian. When a guardian is appointed, he or she can and will make decisions about your welfare or your financial affairs or both.
You don’t have to be an old person to have a guardian appointed. A guardian may be necessary if:
- You suffer from a serious illness
- You have had an accident (such as a car accident or accident at work where serious injuries are sustained), or
- You develop a debilitating condition or illness such as Alzheimer’s or Parkinson’s disease or some other form of dementia.
An application has to be made to the local Sheriff Court to have a guardian appointed. It can be time consuming and expensive to have a guardian appointed (although, legal aid might be available to help defray the costs).
The appointment of a Guardian is a process that’s dealt with through your local Sheriff Court. It can be time consuming and expensive to have a Guardian appointed.
Two medical reports are needed as well as other documents the court needs to see before the appointment can be made.
If someone objects to the appointment, the Sheriff will consider those objections before appointing the guardian. This can slow the whole process down and increase the costs.
If the Sheriff is satisfied that a Guardianship order should be granted, a guardian will be appointed. The Sheriff will also set out the extent of the guardian’s powers.
Some people think they will never need a guardian because their spouse or partner can deal with everything. However, this isn’t always the case, especially when it comes to things like bank accounts. If, for instance, you’re no longer capable of looking after your own affairs and you need to set up a Standing Order to pay for care costs, if the account is in your name alone, your spouse will need authority to deal with this – being a spouse or partner just isn’t sufficient! If you don’t have such authority, the only option might be the appointment of a guardian.
Guardians also need to keep detailed financial records and to submit these every year to the Office of the Public Guardian in Scotland. If a welfare guardian has been appointed, the local social work department will supervise the appointment.
You’ve probably reached the conclusion that being a guardian can be time consuming and expensive and wonder if there are any alternatives. Well, the good news is that all of this can be avoided if you grant a Financial and Welfare Power of Attorney. You get to choose who should make decisions for you and there’s no need to go to court.
We think that all our clients need to consider whether to make a Power of Attorney – whatever age you are. We think that if, by granting a Power of Attorney, you avoid all the time and costs involved in a guardian having to be appointed, then that’s a good thing.
If you would like advice or simply wish to discuss your options – either for yourself or another family member – get in touch.
This article was taken from our December newsletter