Recent media reports have highlighted the fact that increasing numbers of applications for Guardianships in Scotland are putting strain on the specialist social workers who deal with the applications and oversee the guardians.
Ernie Boath, a Partner in our Dundee office commented: “The appointment of a welfare or financial guardian is a procedure under the Adults with Incapacity (Scotland) Act 2000, which allows a third party to apply to be able to look after the affairs of an individual who has lost the capacity to do so themselves. That loss of capacity might be as a result of illness, such as Parkinson’s Disease, stroke or dementia, or as a result of a serious accident, which affects one’s ability to care for themselves and look after their own financial affairs.”
An investigation by the Mental Welfare Commission discovered that in many of the cases they examined, it was clear that local authorities were struggling to carry out the appropriate supervisory visits, or to carry out the initial checks during the application process.
Guardianships are vital to allow family or close friends, or for that matter professional advisors, to step in and look after the affairs of an individual when they are no longer able to do so themselves. It is becoming more widely understood that even very close family members, such as a spouse or child, cannot simply take over the personal or financial affairs of an adult. The number of new guardianship applications granted last year (2,657) is almost double the number that were granted in 2010 (1,336).
With Scotland’s elderly population continuing to grow, it seems likely that the number of guardianship applications will also increase, and as a result, the burden on mental health officers and the Sheriff Court system, is only going to rise.
One way to avoid the need for a guardianship application, however, is by putting a Power of Attorney in place before capacity is lost. This is generally much cheaper and quicker than guardianship and it also has the advantage of the person appointed to look after your affairs being someone of your choosing and in whom you have complete trust. That is because it is you who appoints an attorney to look after your affairs, unlike a guardianship where the guardian applies to have themselves appointed. You can appoint either a single person or a number of people jointly to look after your affairs and they can have responsibility for your financial/business affairs, your welfare, or both.
Ernie added: “The process of granting a Power of Attorney is relatively straightforward and the Private Client Team at Miller Hendry are routinely recommending that all our clients give serious consideration to getting this document prepared sooner rather than later”.