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It's never too early...

It's never too early...

A recent report by the organisation Solicitors for the Elderly has highlighted a potential crisis looming as the gap increases between the number of people likely to lose capacity and the number of people who have Powers of Attorney in place.  The report warns that as many as 12 million people in the UK at risk of developing dementia have not made arrangements to appoint an Attorney to look after their affairs in the event of future incapacity. 

This worrying trend has been reported on frequently in recent years – with better health and social care leading to a nation of people who live longer, but who also are at greater risk of a loss of mental capacity. It should also be remembered that there are many other reasons a person may lose capacity, unrelated to dementia, and so this is not a matter to be considered only by the elderly.

There is, thankfully, an easy solution on hand whilst a person still has capacity – they can put in place a Power of Attorney which allows them to choose the best person / people to make decisions for them, in the event of incapacity.  In Scotland there are two types of Powers of Attorney – a Continuing Power of Attorney which deals with financial and property matters, and a Welfare Power of Attorney which deals with matters of personal welfare, including care, accommodation and medical decisions.  Typically these documents will be prepared as a single “combined” document, ensuring all of these areas are covered.

A Power of Attorney puts the control and choice in the hands of the individual to decide who they would wish to make these personal decisions on their behalf – pre-selecting those they trust, who know them best and who can make the right decisions for them.   In the absence of a Power of Attorney, no one has an automatic right to make these decisions on behalf of someone else – not a person’s spouse, civil partner or next of kin.  Instead, a family member or other appropriate person wishing to make such decisions, would have to apply to the court to obtain a Guardianship Order – a costly, onerous and time-consuming process which is avoidable by planning ahead.

Individuals are encouraged to think about their wishes early and take professional advice to get the documentation they need in place to avoid family members trying to do their best for their loved one, but finding their efforts blocked as they lack the legal authority to make decisions and take actions.

Fiona Clarke
Senior Associate

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