Fri 07 Jun 2019

Decisions, decisions? What happens if a Power of Attorney isn't possible?

Imagine being unable to make decisions for yourself any more. Not just the big decisions, like who to marry or what career to pursue, but everyday choices like what to wear or what to have for breakfast.

Most of us would find the thought of losing control over our lives to this extent frightening. However, for many of the 90,000 people currently living with dementia across Scotland, it's a daily reality.

This week (3-9 June) is Dementia Awareness Week 2019, which aims to raise awareness of the importance of research and local support for those affected and their loved ones. Dementia as a term encompasses over 100 conditions resulting in progressive cognitive decline, including memory loss, personality change, and impairment to decision-making capacity.

All of these impacts are devastating, but decision making also has specific legal implications. If you can't make decisions for yourself you may need someone else to intervene on your behalf to access and pay for appropriate care, decide on medical treatment, or manage your property and finances.

Accordingly, there are specific legal processes which deal with the loss of decision-making capacity. For example, you can plan ahead while you still have capacity, by signing a Power of Attorney appointing someone else to take decisions on your behalf as and when you can no longer do so.

Everyone, not just those facing the prospect of dementia, should consider a Power of Attorney. You never know when a catastrophic event, like a road accident, might impair your decision-making ability temporarily or permanently. (Yes, I am a real riot at parties!)

But what happens if a Power of Attorney isn't possible? In that situation, you will need to consider applying for a guardianship order instead. This is a court order which appoints the guardian(s) for a specified period, usually three years, and gives him or her the legal authority to exercise specific decision-making powers on behalf of the person without capacity. For example, the guardian might seek the power to decide where the person lives and what care and health services they receive. Financial powers can also be granted, so that the person's property and money can be managed for their benefit if they cannot do so themselves. The exercise of these powers is monitored by local authorities and the Office of the Public Guardian to prevent abuse or misconduct.

Appointing someone to make decisions of this gravity for another adult is a drastic measure. Guardians must act according to principles that are intended to preserve as much autonomy for the person as possible. This includes consulting with the person and relevant others before making decisions; encouraging the person to exercise and develop their own skills for dealing with their affairs and making decisions; and taking into account their past and present wishes about any decision.

In the future, it’s likely that the law in Scotland will be changed to strengthen this commitment to autonomy even more, by requiring the guardian to demonstrate respect for the person's "rights, will and preference", and show that he or she has been given "support to exercise his or her legal capacity".

In terms of processes, a guardianship order can only be granted by a court. The process of obtaining an order can be prolonged, as it normally requires a report from your local authority confirming you are a suitable person to be appointed, as well as medical reports and a detailed written application. However, if there's no opposition to your application, and the sheriff has no concerns about it, the order will normally be granted without you having to come to court personally.

Dementia changes the lives of both people living with dementia and their loved ones. In some ways the legal aspects are the most straightforward part, especially with the support of our specialist lawyers who can guide you through the court process and also advise on choices about support provision such as care homes. If someone you look after is affected by dementia, you're always welcome to call us for a no obligation chat about your options.

If you'd like to speak to us, please contact our team. 

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