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Guardianship Orders and Powers of Attorney - What is the Difference?

  • The Law Society of Scotland

Guardianship Orders and Powers of Attorney are both governed by the Adults with Incapacity (Scotland) Act 2000, and are often confused and talked about as if interchangeable. Although both fulfil the same general purpose, they cater to different situations. If you are concerned about your own capacity to make important decisions in the future, or the capacity of someone close to you, it is vital to understand the difference.

What is a Guardianship Order?

Guardianship Orders appoint an individual to make ongoing decisions on behalf of an adult with incapacity who is unable to make decisions about their financial and/or welfare matters themselves. An individual can apply to their local sheriff court to be appointed as guardian on behalf of their loved one. The process can be complex and can take up to six months, and it is appropriate to seek legal advice regarding your application.

What is a Power of Attorney?

A Power of Attorney is a legal document granted by a person with capacity that authorises a named person, usually a family member or a close friend, to make decisions on behalf of the granter should they lose capacity and become incapable of making decisions for themselves. The decisions that can be made on your behalf relate to your finances and personal wellbeing.

Where there is no Power of Attorney in place, and you lose physical or mental capacity or both, your family and friends may have to apply to a court to be able to make decisions on your behalf. This can be a long and complex process. A Power of Attorney gives you control over your future, by allowing you to set out your wishes regarding your finances and wellbeing.

What is the difference?

The main difference is that a Power of Attorney can only be granted by someone who has full capacity, whereas a Guardianship Order will be granted when someone does not have capacity. There are a number of other differences:

  • A Power of Attorney is drafted and dealt with by a solicitor. An application for a Guardianship Order can be prepared with the support of a solicitor, and a decision is made by a sheriff as to whether or not it will be granted.
  • A Guardianship Order is for a fixed amount of time (usually 10 to 15 years) unless it can be shown it should be granted for a longer period, whereas a Power of Attorney will stay in force unless it is revoked or the individual granting it dies.
  • A Power of Attorney can only be granted where the individual granting it can understand and coherently explain their wishes, whereas a Guardianship Order deals with the situation when an adult is already without capacity and cannot make decisions for him/herself
  • A Power of Attorney is akin to an insurance policy. You may never need it, but it is there if you do.

Contact our Private Client Solicitors in Clarkston, Newton Mearns, Giffnock, Netherlee,Eaglesham, Carmunnock, Stewarton Southside Glasgow 

The Private Client Team at Claphams Solicitors has extensive experience in dealing with drafting Powers of Attorney and preparing applications for Guardianship Orders. Our service is professional and compassionate, and our lawyers always put your best interests, and those of your loved ones first. Contact Claphams today on 0141 620 0800 or fill out our online enquiry form if you are in Clarkston, Newton Mearns, Giffnock, Netherlee or the surrounding areas.

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