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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.
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.
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.
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:
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.
Find out more about our expert conveyancing Solicitor, Debra Clapham, Editor of the ‘Basic Scottish Conveyancing’ manual.
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