Powers of Attorney and Incapacity

In Scotland, anyone over the age of 16 is entitled – and expected – to make decisions for themselves. No individual, be it a spouse, parent or other family member, holds an automatic right to make decisions on behalf of another person over the age of 16. For those under the age of 16, decisions can be made on their behalf by a person with parental responsibility. 

What happens, then, if someone over the age of 16 loses the capacity* to make decisions for themselves, and requires someone else to make decisions on their behalf? 

*capacity, in this context, is the ability to understand information relevant to a particular decision or action and to appreciate the reasonably foreseeable consequences of taking (or not taking) that action or decision. Capacity can be lost for a range of reasons, most commonly through an illness or accident. 

The primary mechanism by which a person can authorise another person (or persons) to make decisions on their behalf is a Power of Attorney (“PoA”). 

A PoA is a formal written document that allows a person to nominate a trusted individual, known as an Attorney, and provide them with a detailed range of powers that can be used in the event that the person loses the capacity to make some or all decisions in respect of their personal affairs, be it welfare, financial or both.

The appointment of an Attorney can prove invaluable in the ongoing management and safeguarding of a person’s welfare and finances once capacity has been lost.  

In the event that a person loses capacity without a PoA in place, a Guardianship Order would have to be obtained from a Court in order for another person to gain authority to make decisions on their behalf. This is a complex process that requires an application to be made by the person who wishes to be appointed as the welfare and/or financial Guardian of someone who has lost capacity. 

With life expectancy increasing, and conditions detrimental to capacity such as dementia on the rise, we recommend that every client creates a Power of Attorney to ensure that a trusted person has the authority to take charge of their affairs, should the need to do so ever arise. 

We are experienced in assisting clients and their families prepare for and deal with the challenges that incapacity can pose. Should you require more information, or would like to discuss your options, please do not hesitate to submit an enquiry. 

Chris Inglis is a Trainee Solicitor within the Private Client Department of Russel + Aitken (Falkirk + Alloa).