Most people appreciate the need for a Will, but often have not considered that having a Power of Attorney in place is equally important.
A Power of Attorney allows others to make decisions on your behalf before your death, and is often used when an individual loses capacity to deal with their own affairs. Where a Power of Attorney is in place, it is a relatively straightforward process to start to operate under it. However, if capacity has been lost, and there is no Power of Attorney in place, it may become necessary to apply for a Guardianship order in order that someone else can act on your behalf.
This is a time consuming process, and often costly process, at a time when friends are relatives are likely to be going through an emotionally challenging time as they care for someone who has lost capacity.
The first hurdle is to have someone appointed as a guardian. In doing so a number of suitability reports must be prepared, and ultimately a Sheriff will decide if an applicant should be appointed as guardian. Where an application is successful, that individual will be obliged, for the duration of the term of appointment, to submit annual returns detailing every item of expenditure. They may also have to re-apply for the position of guardian if the Sheriff fails to make an indefinite order, another costly exercise.
The Office of the Public Guardian oversee all aspects of Guardianship, and in their experience they have found that it is often close family members who require most scrutiny. This suspicion could be largely avoided if a Power of Attorney is put in place before capacity is lost. While an attorney is still accountable to the Public Guardian in respect of their actions, there is not a requirement to regularly submit detailed information of their acting.