Decision Making | Connecting Carers

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Is the person you care for able to make decisions?

Legal help is available

Conditions such as dementia, severe mental illness and learning disabilities can limit our capacity to understand or communicate the information we need to make decisions. Family members or friends can legally help the person they care for with decision-making on issues such as welfare, healthcare and finance.

The Law Society of Scotland can help in finding a solicitor. They can also advise on how fees are set, solicitors’ standards and how to make a complaint. Call 0131 226 7411 or visit www.lawscot.org.uk.

If you would like more information call our Carer Support Line on 01463 723560 or email us on carers@connectingcarers.org.uk.

Power of Attorney and Carers

Making decisions for someone else

Power of Attorney (PoA) is a written document giving someone else authority to take actions or make decisions on your behalf. PoA details the names of the people, known as attorneys, who you want to help you and lists the individual powers that you want them to have. The PoA also states the circumstances in which your attorneys can begin acting.

Anyone over the age of 16 who is capable can make a PoA (there are restrictions if a person has been made bankrupt). The PoA provides legal authority for the attorney to make decisions for you. The PoA could then be used in the future if you become incapable.

What does ‘incapable’ mean?

Your capacity could be impaired gradually or suddenly as a result of an accident or illness. A registered and licensed medical doctor will say whether you are incapable or not.

Who can I appoint as my attorney?

You can appoint anyone you want, so long as they are over the age of 16. This could be a family member or friend, a solicitor or accountant, or a combination of people. It’s usually a good idea to have more than one attorney, or a “substitute attorney” to step in if your attorney can no longer do things for you. You can appoint someone to deal with your financial matters and someone different to deal with your personal welfare. Although it’s your choice who you can appoint, you should note that someone who is currently declared bankrupt cannot be appointed to deal with your financial and property affairs.

if you do not have a POA, your family or friends might have to go to court to get the authority to act on your behalf. Your partner or family would not be able to help without a PoA: nobody has the automatic right to take actions on your behalf without legal authority.

Is a PoA just for older people?

No, accidents or illness can happen to anyone.

Is a PoA just for people with lots of money?

No, it is not just about looking after money/property. It can also let you plan who should decide personal welfare issues for you.

What can I put in a PoA and how much does it cost?

You can include things to do with making decisions about your money and/or property only; or your health or personal welfare; or all of your financial affairs and personal welfare. A professional may charge you to draw up a PoA. The PoA should include a certificate signed by a practising solicitor or by a registered and licensed medical doctor. The certificate is needed to confirm that you are capable of understanding the PoA. You might be charged a fee for this service. There is also a charge for the registration fee at the Office of the Public Guardian.

The PoA must be registered with The Office of the Public Guardian before it can be used, even if you are still capable of doing things for yourself. Once the PoA is registered, your documentation and an authenticated copy of the PoA along with a certificate are returned to the sender. They also send you a copy of the registered PoA for your records.

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Can my attorney use my PoA before I become incapable?

Yes. They can help you with your finances if you want them to do so, but they cannot make decisions about your welfare until you are no longer able to make those decisions for yourself.

You can cancel your PoA or any of the powers granted in it once it has been registered. Information is available from the Office of The Public Guardian website explaining how to do this.

Your local Citizens Advice Bureau or solicitor may be able to help with power of attorney. There is also lots of useful information on The Office of the Public Guardian website, or you can phone or email them if you prefer. Telephone 01324 678300 or email opg@scotcourts.gov.uk.

What is a guardianship order?

This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order. An adult with incapacity is someone aged over 16 who is not able to look after their own affairs.

Guardianship is likely to be suitable when decisions need to be taken on an ongoing basis. To give you an idea of circumstances that might be suitable for a guardianship order, refer to the case studies on the Public Guardian website. Before applying for a guardianship order you should seek legal advice to make sure the appointment will benefit the adult and is appropriate under the circumstances.

After taking legal advice, if the application is considered to be both appropriate and beneficial to the adult the application will include a list of the powers you need to look after the adult’s affairs. Powers can be requested to deal with the adult’s property and/or financial affairs and/or to make decisions about their personal welfare. For children who are about to reach the age of 16, you can apply for a guardianship order up to three months before their 16th birthday. This means that the guardianship order will take effect on the date of their birthday.

Info on Guardianships

For more information on Power of Attorney or Guardianship contact the Office of the Public Guardian (Scotland). The telephone number is 01324 678300. Email opg@scotcourts.gov.uk or visit their website at www.publicguardian-scotland.gov.uk.

If you would like more information call our Carer Support Line on 01463 723560 or email us on carers@connectingcarers.org.uk.

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