The question is seemingly straightforward; but the answer is more complex. Here we highlight the importance of ensuring that a power of attorney is properly drafted to avoid the need for additional measures, including a guardianship order in the future.
Firstly though, let's go back to basics and look at powers of attorney and guardianships and how they are different from one another.
The key differences between powers of attorney and guardianships
It is a common misconception that if you become unable to make your own decisions, your family or friends would automatically step in and help you. The reality is that there is no legal authority for anyone to speak on your behalf in this scenario.
Powers of attorney – a quick and simple way of planning ahead
A power of attorney is a quick and cost-effective solution that allows you to appoint a person (or people) to make decisions regarding your property and finances and your health and welfare if you become unable to manage your own affairs. You must have capacity to grant a power of attorney. You should prepare a power of attorney now to ensure that, if necessary, decision making power lies in the hands of the people you trust in the future.
When might I need a guardianship order?
Your attorney will only have the powers you have listed in the deed appointing them. If your attorney is faced with an issue that they have no power to deal with, they will be unable to act on your behalf. In this case, it may be necessary for additional powers to be sought from the Sheriff court so that your interests can be protected by application for a guardianship order (or an intervention order where authority to make a one-off action is needed). Again, the Sheriff will only grant additional powers if doing so will be of benefit to you. In this scenario, the guardianship or intervention order will exist alongside the power of attorney and the two will be used together.
The importance of a properly drafted power of attorney
There should be no requirement for a guardianship if you have a power of attorney in place provided it is well drafted and includes wide ranging, flexible powers. A properly drafted power of attorney aims to ensure that the attorney is able to deal with whatever situations might arise in the future so that your financial and property interests as well as your health and welfare are protected.
If you have any questions about powers of attorney or guardianship or would like to discuss any of the issues raised in this blog, please contact us.
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