Scottish Dementia Awareness Week begins today, a period during which the stories of those dealing with dementia, and those of their families and loved ones, are given the attention that the scale of this issue deserves.
As lawyers dealing with individuals and families on a daily basis, private client practitioners are only too aware of the impact of dementia on the lives of so many people, with more than 90,000 people in this country living with dementia.
Dementia is, of course, a broad umbrella term used to describe a range of progressive neurological disorders. It's commonly seen as something which affects the elderly, and while this is true in most cases it can also develop in younger people.
There are some wonderful organisations dedicated to helping people deal with the challenges that dementia can bring to everyone affected by it, and help and support is available at a time when that support is needed most. Unfortunately, dementia is an issue which is only going to grow in the future and as such it is an issue that each and every one of us needs to confront in terms of our own and our family's affairs.
The legal situation - capacity
Often it is assumed that should someone become incapable of dealing with their own affairs then their spouse/civil partner, or close family members, will be able to act on their behalf. However, this is not the case.
Unless there is a Power of Attorney set up in advance, no one has an automatic authority to make decisions about someone's life if they lose the ability to make decisions for themselves. Without a Power of Attorney you may need to appoint a Guardian – a court process which is time consuming and expensive.
It's not outwith the realms of possibility that the person who becomes your Guardian may not be who you would have chosen as your Attorney. The legislation is there to protect a vulnerable adult but in practice the best protection comes from recognising that a Power of Attorney would be useful even if simply as a safeguard. Attorneys in Scotland can only act within the powers that have been conferred upon them and must at all times act in the best interests of the adult and not themselves.
In most situations, a couple will often appoint each other as their Attorney and will give each other extensive powers that allow matters of finance or welfare or perhaps both, to be dealt with. In the event that the Attorney is unable to act, it is good practice to provide for the appointment of a substitute or substitutes. Children very often take on this role but it's common also to make provision for a professional appointment such as a solicitor or accountant.
Powers of Attorney need to be registered with the Office of the Public Guardian before they can be used.
The power of a PoA
Irrespective of which type is diagnosed, each person will experience dementia in their own unique way. Short term memory is often affected and problems with communication are often also an issue.
In the event of a diagnosis of dementia, Powers of Attorney can prove to be worth their weight in gold and will let you get on with what really matters – taking care of loved ones – without being overwhelmed with red tape.
In this day and age of excessive bureaucracy, dealing with banks, building societies and the like can be a very frustrating exercise. Having in place a Power of Attorney formalises the position, although it must be said that even now there are some institutions that still don’t understand how to deal with a Power of Attorney in respect of their internal procedures.
You should persevere, though, if you have been appointed as an Attorney – the adult who has appointed you thus has placed a lot of responsibility onto your shoulders. In such circumstances it's not too much to expect the organisations that you might have to deal with on behalf of an incapable adult to have their house in order.
Get in touch
If you would like to know more about Powers of Attorney, please don’t hesitate to get in touch with our private client team.