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How best to deal with the rise in individuals seeking Powers of Attorney?

As reported by Scottish Legal News and others, individuals are now facing a 13-week wait in order to register their Powers of Attorney with the Office of the Public Guardian. According to Annabelle Ewing, Scottish Government Minister for Community Safety, registration submissions have risen by 40% in the last 2 years.

As the population ages and people continue to live longer, guardianship orders have also risen dramatically. Guardianship orders are made by a court when individuals do not have the mental capacity to make their own decisions, passing the responsibility to the applicant if successful. The increase is due to the age-related illness such as dementia and Alzheimer’s Disease, which – combined – accounted for 44% of new applications since 2009/10.

The Scotsman reports that Scotland has experienced ‘a 135 per cent rise in applications for guardianship orders over the past seven years.’ The Mental Welfare Commission has stressed that more people should be considering making a Power of Attorney, as the process involved through the courts can be lengthy and complex. However, as noted above, the wait for registering a Power of Attorney can also take up to 13 weeks or longer, although in cases of emergency they can be expedited.

The Scottish Government has responded by offering civil servants overtime hours in order to cope with the backlog and claims the problem is being dealt with. Undoubtedly, governments at both local and national level will have to redirect resources and legislative efforts towards these and similar issues, as a greater proportion of the population suffers from age-related illness. It is the duty of solicitors to ensure clients understand that, regardless of a 13 week waiting period for registration, Powers of Attorney are vastly preferable to having to apply for a guardianship order.

Indeed, firms great and small are making it clear to clients the importance and often necessity of making a Power of Attorney. In cases where individuals have a family history of dementia or Alzheimer’s, it is fundamentally important that solicitors stress that it can come down to the choice of making a Power of Attorney now, or risk having to go through the court process of obtaining a guardianship order later. Not only are guardianship orders more complex, time consuming and expensive, they also pass the responsibility of obtaining one from the client himself to the client’s relative or friend, after they have lost capacity to make a Power of Attorney. This can be extremely stressful for all involved.

Ultimately, Power of Attorney services offered by legal firms are on the rise. Therefore, the legal services industry can be said to have adapted to society’s change in age structure. Whether public bodies can do so, in order to avoid situations like the backlog in Powers of Attorney registration, remains to be seen.

This blog was written by Stephen Nicolson, LLB (Hons), Dip LP

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