Making decisions for others

How can one person make decisions for someone else?

Peggy and andy

In Scotland there are two ways for one person to make decisions for or on behalf of someone else

Power of attorney is when one person gives someone else the power to make the decisions for them.

  • The person chooses who is going to have power of attorney.
  • It can apply now or at some point in the future – for example when the person is not able to look after their own affairs.
  • It can apply to just looking after the person’s welfare – and this is called a Welfare Power of Attorney.
  • It can also be used to get someone to look after your money or for all of your affairs – this is called Continuing Power of Attorney.

Guardianship is when an official body appoints someone to make decisions for you.

  • It only happens when someone is not able to make decisions themselves because of an illness or disability.
  • It can cover your welfare, your financial arrangements, or both.
  • There are more rules around how guardianship works. These are designed to protect the person with the disability

These arrangements are designed to help when someone is not able to look after their own affairs. The definition of capacity is that someone has to be able to make a decision, communicate the decision, understand the effect of the decision and remember what you have done.

Capacity is not an all or nothing. The law recognises that someone can be able to make decisions on some matters but not on others. It also recognises that a person’s capacity can continue to change over time.

The law that sets out what people’s rights and responsibilities are is the Adults with Incapacity (Scotland) Act 2000.

There is more information about both Power of Attorney and guardianship from the Office of the Public Guardian: www.publicguardian-scotland.gov.uk

This is a summary of the main points on how each arrangement works. It can help you think about what might work for you. But you would need to get more information and check the details.
  • What does it cover?
  • How can I have a say in planning it?
  • Do I have a choice in the person who looks after my affairs?
  • Can I do it in advance of having problems with capacity, or when this is just beginning to be a problem?
  • Can my relatives use it if they are worried about me?
  • Can we use it if I already have quite limited capacity?
  • What happens if my circumstances change?
  • What happens if the person I’ve chosen can’t do this anymore?
  • What accountability is there and can the person looking after my affairs get advice?
  • What happens if someone is worried that the person looking after my affairs is not acting for my benefit?
  • How long does it take to arrange?
  • How much does it cost?

Continuing Power of Attorney:

It covers your financial affairs. It comes in to effect when you ask the person to act on your behalf or when you are no longer able to look after your money and related matters

Welfare Power of Attorney:

It covers your welfare – where you live, the care you receive and consenting to medical treatment. It begins when you are no longer capable of making decisions for yourself

Guardianship:

It covers your financial affairs, or your welfare, or both. The range can be very wide to reflect each person’s needs.

The aim is to help the person still make as many decisions as they can.

Continuing Power of Attorney:

You decide what is covered in the arrangements.

Welfare Power of Attorney:

You decide what is covered in the arrangements.

Guardianship:

Everything is based on giving you as much choice and control as possible.

List out what you want to happen. All future arrangements will take account of this.

Continuing Power of Attorney:

You name the person who takes on the role.

Welfare Power of Attorney:

You name the person who takes on the role.

Guardianship:

The person is appointed by the court when someone applies for guardianship. Usually it will be a relative or friend. It is based on what is known about your choice and views.

Continuing Power of Attorney:

Yes – this is what it is designed for.

Welfare Power of Attorney:

Yes – this is what it is designed for.

Guardianship:

In theory no. In practice yes – because your views and wishes from earlier and at the time guardianship begins are the starting point for what happens.

Continuing Power of Attorney:

They can ask you to sign a Power of Attorney. They should not put you under any pressure to agree.

Welfare Power of Attorney:

They can ask you to sign a Power of Attorney. They should not put you under any pressure to agree.

Guardianship:

Yes – this is what it is designed for.

Continuing Power of Attorney:

No. You need to have enough capacity to decide to do this and decide what arrangements you want.

Welfare Power of Attorney:

No. You need to have enough capacity to decide to do this and decide what arrangements you want.

Guardianship:

Yes – this is what it is designed for.

Continuing Power of Attorney:

You can end or change the arrangements, provided you are still able to do this.

If you are no longer able to say you want the changes, then your family would use guardianship.

Welfare Power of Attorney:

You can end or change the arrangements, provided you are still able to do this.

If you are no longer able to say you want the changes, then your family would use guardianship.

Guardianship:

The people who are your guardians can check with the Office of the Public Guardian about changing things to suit your circumstances. Or the Office of the Public Guardian can start changes.

Continuing Power of Attorney:

If you still have capacity you change the arrangements and state who the new person will be.

Someone else would start an application for guardianship if you have already lost capacity.

Welfare Power of Attorney:

If you still have capacity you change the arrangements and state who the new person will be.

Someone else would start an application for guardianship if you have already lost capacity.

Guardianship:

The Office of the Public Guardian will arrange for someone else to take over. It is based on what you want and your best interests.

Continuing Power of Attorney:

The person with Power of Attorney can involve other members of your family and can ask for advice, for example from a solicitor.

Welfare Power of Attorney:

The person with Power of Attorney can involve other members of your family and can ask for advice, for example from a solicitor.

Guardianship:

The people who are guardians are accountable to the Office of the Public Guardian. They give a report each year on how things are going.

The people who act as guardians can get advice from the Office of the Public Guardian at any time.

The guardians are required to involve other members of the family as well as the person themselves in making decisions and looking after the person’s affairs.

Continuing Power of Attorney:

They can take their concerns to the Investigation Team at the Office of the Public Guardian. The Investigation Team will check things out and decide how best to handle things to protect your best interests.

Welfare Power of Attorney:

They can take their concerns to the social work department at the local Council or to the Mental Welfare Commission.

The Local help section of this website has the contact for the Council in each area.

You can find out more about  the Mental Welfare Commission at: www.mwcscot.org.uk

The advice line is 0131 313 8777 or 0800 389 6809

Another good source of advice is the information on adult protection in Scotland which the Scottish Government and other bodies have developed: www.actagainstharm.org

Guardianship:

They can contact the Office of the Public Guardian.

Some people find that the annual report which the guardians have to make to the Office of the Public Guardian reassures everyone that matters are being handled well.

Continuing Power of Attorney:

It can be done quickly.

Welfare Power of Attorney:

It can be done quickly.

Guardianship:

There is more paperwork and it takes longer than Power of Attorney, because there has to be an independent assessment of the person’s capacity.

There is a quicker arrangement when there is a one-off matter that needs to be dealt with.

Continuing Power of Attorney:

Usually a few hundred pounds for the solicitor’s fee.

There are also fees for registering papers with Office of the Public Guardian.

Welfare Power of Attorney:

Usually a few hundred pounds for the solicitor’s fee.

There are also fees for registering papers with Office of the Public Guardian.

Guardianship:

There are fees for the applications.

If the family want to instruct a solicitor to make the application for them, then there will be the legal costs.

Some people get advice from other places, such as Legal Advice Centres, while some people feel confident about doing it themselves.

 

 

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