Mon 15 May 2023

Dementia Action Week - Granting a Power of Attorney

Dementia Action Week is an annual awareness raising campaign. This year's theme is diagnosis. Dementia is a progressive condition, meaning that it gets worse over time. The speed of deterioration differs between individuals, with various factors affecting the pattern of progression. 

A dementia diagnosis can have a big emotional, social and psychological impact on a person's life and those closest to them.

Although the future may be difficult to discuss, putting in place a Power of Attorney may give you reassurance that your wishes are recorded and decisions will be made on your behalf by someone you trust. We are often approached by friends and family of an individual when they are concerned about their loved one's ability to manage their financial and welfare affairs. At that point, it can often be too late for the person to grant a Power of Attorney due to a lack of capacity. Ensuring your affairs are in order in advance can make things easier for you and your loved ones as your dementia progresses.

What is a Power of Attorney and can I still put one in place following a dementia diagnosis?

A Power of Attorney is a written document where an individual appoints one or more people to act as their attorney, in the event that they cannot make decisions for themselves.

There are two types of powers: continuing powers and welfare powers. An individual can grant either type, or both, in one document. Continuing powers relate to finances and can include managing your bank accounts and investments or paying your bills. Welfare attorneys typically have the power to make decisions about accommodation and care.

Mental capacity is required to grant a Power of Attorney, so a dementia diagnosis does not automatically mean that you cannot grant one. The situation is dependent on your capacity to understand the document and is assessed by a doctor or lawyer. As dementia is a progressive condition, we recommend you grant a Power of Attorney as soon as you feel ready to do so. This will ensure you get to choose who your attorneys are and the powers that they have.

When can my Power of Attorney be used?

Once registered with the Office of the Public Guardian, the financial powers can be used automatically, but only if you allow your attorney to do so. By contrast, the welfare powers can only be used if you lose capacity.

What safeguards are in place to protect me once I lose capacity?

You should be confident that the attorney(s) you appoint are aware of your wishes and will respect them. However, there is legislation which protects you if you lose capacity. The Office of the Public Guardian can investigate any complaints or circumstances regarding the operation of a Power of Attorney.

All attorneys must act in accordance with the general principles of The Adults with Incapacity (Scotland) Act 2000. These principles include only making decisions which are of benefit to you and taking into account your past and present wishes, as well as the views of other parties (e.g., relatives or primary carers).

What happens if I no longer have capacity to grant a Power of Attorney?

If an individual no longer has capacity to grant a Power of Attorney, an application can be submitted to the court for a guardianship order. However, this process is costly and time consuming. Prior to the granting of an order, difficulties can arise for family members and friends with accessing bank accounts and paying care costs. 

We would therefore recommend that you ensure an appropriate Power of Attorney is prepared whilst you have capacity.  If you wish to discuss granting a Power of Attorney, please contact our team. We are available to meet with you both in person or online based on your preference.

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