Power of Attorney v Guardianship
Powers of Attorney v. Guardianship
It is often recommend to clients, particularly in later life, that they obtain a Power of Attorney to help manage their affairs when they no longer have the capacity to do so themselves. However sometimes life does not go to plan, and a Power of Attorney is not obtained perhaps due to cost, the time needed to attend an appointment to give instructions, or simply because it is not viewed as ‘need at the moment’. When a person no longer has capacity, a Guardianship Order must be sought to appoint someone to make the necessary decision in an individual’s affairs. However, the process of obtaining Guardianship is far more complicated than that of making a Power of Attorney, particularly because it requires Court intervention. To make the decision to remove a person’s ability to make choices for themselves, and place this in the hands of another party, is undoubtedly a decision which must be made by the Court as it ultimately protects the interests of a vulnerable adult.
Obtaining a Guardianship Order has some difficulties; predominately the considerable length of time to obtain the order and the relatively high costs. The time frames are, to a large extent, an unavoidable obstacle. At the point where a Guardianship Order is needed, the adult is already considered to be unable to make decisions, therefore there is a want for someone to be appointed almost straight away. Unfortunately, obtaining a Guardianship can often take many months or even years to be granted. There is a significant period of time in which various steps need to be taken; funding needs to be sourced, reports obtained, and a Court hearing must take place. The process of obtaining a Guardianship is, however, believed to be necessary, because of the nature of the power it gives. There should be many steps taken, as to make a Guardianship a quick process may cause a vulnerable adult to be at risk.
However, how Guardianships are funded could be open to more change. Given the need for Court intervention and the need to pay specialist medical professionals for reports, Guardianships can typically cost thousands of pounds. Even to gain initial advice and put forward an application for Legal Aid may put a large financial burden on a family if they are not eligible for a type of Legal Aid called Advice and Assistance, which is means tested. Typically Guardianship can be obtained using Legal Aid funding from the government, as it is a necessary order to protect the health of an individual, amongst other financial and welfare matters. They are welcomed because they put the decisions relating the adult back into the hands of family members who know the personality of the individual and can best meet their needs. The Order also removes pressure on those services that would have to make decisions when no one else can, namely Social Services.
The increased budget restrictions of the government mean that Legal Aid, particularly Civil Legal Aid, is potentially under threat. It was announced this year that the current Legal Aid system will being independently reviewed. The Law Society of Scotland has welcomed this review, stating that it was needed urgently. Positive changes may therefore be coming. However, with cuts across the board, undoubtedly Legal Aid will be in some way impacted. There is a risk that other matters may take more predominate positions in the governments plans, particularly as there has been a movement away from public welfare in matters such as health care and pensions, to encourage private care and personal responsibility. This could result in vulnerable adults who have not taken such measures being at risk: stuck in hospitals until families can fund the cost of an application. In circumstances where the future of Civil Legal Aid is perhaps uncertain, it is no wonder than Powers of Attorney are advocated by solicitors even to a younger age group to protect from risks and problems the future may bring. This ensures that, along with a Will, the future affairs of clients in both life and death are managed according to their wishes.
This blog post was written by Kathryn Duncan, LLB (Hons), Dip LPView all →