Do you need a Power of Attorney or a Guardianship Order?
I recently read an article about creating a Power of Attorney (POA) which stated that one of the benefits of creating a Power of Attorney is that it is less costly than a Guardianship Application.
While this is certainly true, it gives the impression that even when capacity is not an issue, it is an “either/or” question. It is not enough to say that clients should only consider the costs of each procedure because in practical terms, there are vast differences between the process and the parties involved.
What are the differences between Power of Attorney and Guardianship?
The most fundamental difference is that a Power of Attorney can only be granted if the person creating it, known as the granter, has the capacity to do so. A solicitor or doctor must certify that the granter has capacity which is based on an assessment of the granter and/or because there is opinion from another, usually the granter’s GP, which confirms their capacity.
Conversely, a Guardianship Order would only be sought when the “would be” granter no longer has the capacity to deal with their affairs. Crucially, a Power of Attorney is instructed by the person granting it whereas a Guardianship is instructed by a close relative or friend of the person who has lost capacity or, in some cases, the Local Authority in which the person resides.
The Power of Attorney document and Application for Guardianship Order contain many of the same powers relating to welfare and financial affairs. A crucial difference is that the granter of a POA can choose which powers are to be included and there does not need to be a statement which explains why a particular power or powers are required.
In a Guardianship Application, it is certainly true that there are standard powers that would be requested of the court however within the application, there are statements of fact which demonstrate to the court why a particular power or powers are needed.
A crucial consideration for a Guardianship Application is that it must be the least restrictive option to safeguard the welfare or financial affairs of the person who has lost capacity, known as the Adult. A Guardianship Order effectively takes the Adult’s decision-making and transfers it to someone else.it therefore follows that in taking such a significant step, there can be no other measure that can maintain the welfare and finances of the Adult. Whereas in creating a Power of Attorney, the only consideration is the wish of the granter to take this crucial step in dealing with their personal affairs.
In addition, a POA can be revoked at any time by the granter provided they have the capacity to do so. Again this is certified by a solicitor or doctor. In a Guardianship Application, the Sheriff is required to state the duration of the Order. When the paramount consideration is for the Order to be the least restrictive option, the Order is less likely to be for the lifetime of the Adult as there may be circumstances in which the Adult has regained some level of capacity or the particular powers conferred in the original Order are no longer required.
Get in touch
For help or advice about any matter raised in this article please contact Harper Macleod’s Private Client department. Our experienced solicitors will be happy to discuss all of the available options to help you make suitable arrangements.
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