According to Alzheimer Scotland, an estimated 90,000 people currently live with dementia in Scotland. Around 3,200 of these individuals are under the age of 65. By 2026, this number is expected to increase to approximately 164,000. As such, it is important to understand what happens when an adult has lost the ability to make their own decisions, without having first made a Power of Attorney appointing a specified person to act in such a circumstance.
Where there is no Power of Attorney in place, and an incapacitated individual is over the age of 16 years old, a Guardianship Order must be sought from the Sheriff Court. Such an order permits a loved one, or close friend, the power to act on behalf of an adult with incapacity to protect and support their interests.
A Guardianship Order can be sought (with the assistance of a Solicitor) by anybody with an interest in the incapacitated individual’s finances or welfare and can cover both financial and welfare matters, or just financial matters.
The Sheriff will take the views of the closest relative and primary carer of the individual, together with the professional opinion of the incapacitated individual’s GP, Psychiatrist and Mental Health Officer -all of whom require to submit a written report to the Sheriff as part of the process.
At the hearing the Sheriff will review the information submitted and decide whether it would be in the best interests of the adult with incapacity to grant a Guardianship Order to enable a specified person to act on their behalf. It is common for such an order to remain valid for a period of 3 years (to allow review at the end of this time) but in certain circumstances the order may remain valid for the rest of the adult’s life.
It is important to bear in mind, however, that a loved one who has just been diagnosed with Dementia may still have sufficient mental capacity to instruct a Power of Attorney. Mental incapacity is extremely complex and if such an individual still has the ability to make sound decisions and understands the consequences of appointing someone as their Attorney, then a Doctor or Solicitor may be happy to certify capacity in this respect- despite the diagnosis. The preparation of a Power of Attorney can avoid the stress, costs and delay of having to apply to the Court to be appointed as a Guardian for a loved one. Whilst a Power of Attorney can be drawn up within a matter of days, a Guardianship Order can take between 6 months to a year to complete.
If you wish to speak to one of our team about making a Power of Attorney, or indeed having to seek a Guardianship Order, then please contact one of our offices, where one of our specialist lawyerswould be more than happy to assist.