However much we prefer not to dwell on the subject, no one is immortal. In our heart of hearts, we know that old age comes to us all – if we are lucky – and with it the complications of the later stages of life. For many of us there will come a time when we are no longer, by law, capable of taking actions and making decisions for ourselves.
I was recently consulted by a client whose elderly mother had been admitted to hospital following a fall. Sadly, and this is a relatively common scenario, the injury had led to a steep decline in her mother’s mental health. Previously diagnosed with dementia, her stay in hospital had left her so diminished that she was deemed unfit to return home to look after herself. However, because of her dementia, she was unable to consent to being moved from hospital to a residential care home. Instead, she found herself stuck in the hospital on delayed discharge.
Her story could have been very different. Some time ago, my client had urged her mother to put in place a Power of Attorney – a legal document that allows another party to make decisions for you, or act on your behalf – which she and her husband had themselves done several years previously when they made their wills.
Although the mother had agreed in principle to put a Power of Attorney in place, she kept putting it off until it was too late. Had she done so, her children would have been legally authorised to give consent, allowing her to get settled into residential care, with the support she needed, rather than being left stranded in the hospital.
Instead, I had to advise my client that the only route open to her was to apply to the Sheriff Court for a guardianship order to gain the appropriate financial and welfare powers over her mother’s affairs. I could see the concern when I explained it could take three months, or possibly longer, for the order to be granted, and that the process would be costly.
A guardianship application is a court procedure requiring a number of expert reports in support of the application. The guardian is also generally required to obtain an insurance policy to protect the value of the estate. After the guardianship order is issued, the Office of the Public Guardian (OPG) in Scotland supervises guardianship orders on an ongoing basis, for which fees are payable: all of which can be avoided by putting a protective Power of Attorney in place.
Many people mistakenly believe that they do not need a Power of Attorney because their next of kin (their spouse or children) would legally be able to make decisions for them in the event they were incapable of doing so. This is not the case: no one has this authority other than an attorney or court-appointed guardian. Unless an attorney has been appointed, or until a guardian is appointed, the individual concerned will find themselves in limbo.
It costs the NHS millions of pounds each year to look after hospital patients who are physically fit to be discharged, yet cannot be due to mental incapacity. This is called ‘delayed transfer of care’, but is more commonly (and perhaps crudely) referred to as ‘bed-blocking’.
Powers of Attorney are fairly complex documents and as such are usually drafted by a solicitor. They include a certificate of capacity, which must be signed by either a solicitor or a doctor, certifying that the granter understands the document and is not under any undue influence. In order for the attorney to use it, the Power of Attorney must be registered with the OPG, for which there is a modest fee.
A Power of Attorney is usually split into two parts: one part giving the attorney power over property and finances, and the other covering health and welfare matters.
A single attorney or joint attorneys may be appointed. It is generally a good idea to also appoint substitute attorneys, to future-proof the document, just in case anything happens to the original attorney(s). Many couples choose to appoint each other as sole attorney with their children as substitute joint attorneys. The same person is usually appointed as financial and welfare attorney, but it is also possible to appoint different people to cover each role.
The cost of putting a Power of Attorney in place often puts people off. However, consider the significantly higher cost of a guardianship (around 10 times as much), and ongoing OPG compliance, the advantages of early action far outweigh the negatives.
Like an insurance premium, it is a one-off expense in return for the protection and peace of mind of knowing that you have appointed someone you trust to look after your affairs and make important decisions about your welfare should you no longer be able to do so.
We strongly recommend putting a protective Power of Attorney in place as an integral part of planning for the future, thereby avoiding any unnecessary delays, stress and expense for you and your family in the future. Do not put off until tomorrow what you can do today, as you never know what tomorrow may bring.