A recent judgement from Paisley Sheriff Court serves as a stark reminder of the benefits of planning ahead and putting in place a power of attorney while you can.
Discussions about powers of attorney are rarely at the top of anyone’s list of conversation starters, especially during the festive season. However, a recent case which made the headlines emphasises the importance of ensuring you and your loved ones are protected. It’s a call to action for everyone, regardless of age, to consider the vital role a power of attorney can play in securing your future.
Families and their finances
Misconceptions about powers of attorney often lead to them being neglected or underutilised, sometimes with serious consequences for individuals, families and their finances.
In a recent case, an 84-year-old woman, referred to as Mrs G, who had been diagnosed with dementia and was no longer capable of making decisions about her property, finances, or personal care, had not put a power of attorney in place before her health declined. As a result, her family – three of her four feuding children – found themselves embroiled in a court battle over who should be appointed as her financial and welfare guardian.
The court heard applications from Mrs G’s son, who sought to be appointed as her financial and welfare guardian, and counterarguments from two of her daughters, who opposed their brother’s approach to their mother’s care. The judge noted the “deep-rooted disharmony within the family” and concluded that this discord would not be resolved, even in light of their mother’s deteriorating health.
Guided by the principle of acting in the adult’s best interests, as set out in the Adults with Incapacity (Scotland) Act 2000, the judge decided that none of Mrs G’s children were suitable to act as her welfare guardian. Instead, the Chief Social Worker of East Renfrewshire Council was appointed to this role, while Mrs G’s son was approved as her financial guardian.
How could this have been avoided?
A practical way for Mrs G to maintain control of the situation would have been to prepare a power of attorney in advance, while she still had the capacity to do so. In many cases, this can even be after a diagnosis of dementia. A power of attorney would have allowed Mrs G to specify who she trusted to handle her affairs and ensured that her wishes were respected – sparing her family the costs and stress of a drawn-out court battle.
A power of attorney is a legal document that appoints one or more persons (attorneys) to act on your behalf for specific purposes. The most common type is the combined continuing and welfare power of attorney, which allows attorneys to manage both financial matters and personal welfare. Crucially, it remains valid if the granter loses the capacity to make decisions. A power of attorney should be seen as an insurance policy, providing peace of mind and offering protection in the event of in capacity – an invaluable safeguard for you and your loved ones.
The consequences of not having a power of attorney
Without a power of attorney, the alternative – as seen in Mrs G’s case – is an application to the court to appoint a guardian. This is often a lengthy, expensive, and complex court procedure, which might result in none of your loved ones being deemed suitable to act on your behalf.
We encourage people of all ages to take control and consider appointing an attorney now. A power of attorney is an essential step in future-proofing your affairs and ensuring your wishes are respected, whatever the future holds. The importance of planning ahead cannot be overstated, especially in cases where family disputes may arise.
Published 18 December 2024
