As our loved ones in Glasgow age, families often begin to consider how best to support them, particularly if their health or cognitive abilities start to decline. A Power of Attorney (PoA) is a vital legal tool that can provide immense peace of mind, ensuring that an elderly relative’s affairs are managed effectively and compassionately if they become unable to do so themselves.
However, setting up powers of attorney Glasgow for an elderly relative in Glasgow, under Scottish law, comes with specific considerations. This guide will outline what families need to know.
Why a Power of Attorney is Crucial for Elderly Relatives
Many adult children or spouses mistakenly believe they automatically have the legal right to make decisions for an elderly family member if they become unwell or incapacitated. In Scotland, this is not the case. Without a valid Power of Attorney:
- No Automatic Authority: Even immediate family members have no legal authority to access bank accounts, pay bills, make healthcare decisions, or manage property on behalf of an incapacitated relative.
- Guardianship Order Required: If no PoA is in place and capacity is lost, the family would need to apply to the Sheriff Court for a “Guardianship Order.” This process is lengthy, complex, expensive, and can be emotionally draining during an already difficult time. It often involves multiple court hearings and significant legal fees.
- Delays and Stress: Critical decisions about healthcare, living arrangements, or urgent financial matters can be severely delayed without a PoA, causing stress and potential harm to the elderly person’s well-being.
A PoA acts as an “insurance policy,” ensuring that trusted individuals can step in seamlessly to manage affairs according to the ederly person’s wishes.
Key Considerations When Setting Up a PoA for an Elderly Relative
-
Mental Capacity is Paramount: The most crucial factor is that the elderly relative (the “Granter”) must have the mental capacity to understand what a Power of Attorney is, its implications, and the powers they are granting. This means they must be able to:
- Understand the information relevant to the decision.
- Retain that information.
- Use or weigh that information as part of the process of making the decision.
- Communicate the decision.
A solicitor or medical doctor must interview the elderly relative immediately before they sign the PoA document and certify their capacity. If capacity has already been lost, a PoA cannot be put in place, and a Guardianship Order would be the only legal recourse.
-
Types of Power of Attorney: For elderly relatives, typically a Combined Power of Attorney is recommended, encompassing both:
- Continuing Power of Attorney (Financial/Property): Allows the Attorney to manage bank accounts, pay bills, handle investments, collect pensions/benefits, and deal with property. This can take effect immediately or only upon the Granter’s incapacity.
- Welfare Power of Attorney (Personal/Healthcare): Allows the Attorney to make decisions about medical treatment, daily care, and living arrangements (e.g., moving into a care home). These powers can only be exercised if and when the Granter loses the capacity to make these decisions themselves.
-
Choosing the Right Attorney(s): This is perhaps the most sensitive decision. The Attorney(s) should be:
- Completely trustworthy: They will be handling significant aspects of the elderly person’s life.
- Reliable and organised: Especially for financial matters, accurate record-keeping is essential.
- Knowledgeable about their wishes: They should understand the elderly relative’s values, preferences, and lifestyle choices.
- Willing and able to act: It’s a significant responsibility; ensure they understand the commitment.
- Over 16 years old and not bankrupt (if handling finances).
It’s wise to discuss these roles openly with potential Attorneys and consider appointing substitute Attorneys in case the primary Attorney becomes unable to act. Many elderly people choose adult children or trusted friends. Sometimes, a professional solicitor or accountant may be appointed for financial matters, particularly if the affairs are complex or there are no suitable family members.
-
The Role of a Glasgow Solicitor: Engaging a Glasgow solicitor is highly advisable for setting up a PoA for an elderly relative. They can:
- Ensure validity: Guarantee the document complies with Scottish law (Adults with Incapacity (Scotland) Act 2000).
- Assess capacity: Conduct the required interview and provide the crucial Certificate of Capacity.
- Tailor the document: Customise the PoA to the specific needs and wishes of the elderly relative, including any nuanced instructions regarding care or property.
- Explain implications: Clearly communicate the powers being granted and the responsibilities of the Attorney.
- Handle registration: Manage the mandatory registration with the Office of the Public Guardian (OPG) in Falkirk, which is vital for the PoA to be legally effective.
-
Costs Involved: The costs will typically include:
- Solicitor’s fees: These vary but generally range from £250 to £450 plus VAT for a standard combined PoA.
- OPG registration fee: This statutory fee is currently £96 (always check the OPG website for the most up-to-date fee).
- Legal Aid: It’s worth exploring if the elderly relative’s financial situation makes them eligible for Legal Aid, which can help cover solicitor fees.
What if Capacity is Already Lost?
If an elderly relative has already lost mental capacity and does not have a PoA in place, the only legal route to gain authority to manage their affairs is to apply to the Sheriff Court for a Guardianship Order. This is a more involved, costly, and lengthy process than setting up a PoA. A solicitor specializing in adults with incapacity law in Glasgow can guide families through this complex court application.
Important Advice for Families
- Act Early: Encourage elderly relatives to consider a PoA while they are still healthy and have full mental capacity. This allows them to make these crucial decisions themselves, free from pressure.
- Open Communication: Have frank and open discussions with your elderly relative about their wishes and who they would want to appoint. This ensures their preferences are recorded and understood.
- Review Regularly: While a PoA is designed to be long-lasting, it’s wise to review it periodically, especially if there are significant changes in the elderly relative’s health, financial situation, or family circumstances.
By understanding the specific requirements and benefits of a Power of Attorney for elderly relatives in Glasgow, families can take proactive steps to ensure their loved ones’ well-being and wishes are protected, providing stability and peace of mind for everyone involved. Consulting with a reputable Glasgow solicitor specializing in private client work is the best first step.
