As we get older, we are more likely to require assistance with our day to day life. If your loved one needs help with their care and well-being, obtaining legal advice can ensure you know what options are available. There are various legal documents that are designed to meet a person's wishes for later life, particularly a will, living will, and Power of Attorney. In this article, we look at some of the steps that can be taken when making care plans for a loved one.
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Setting up care for a loved one involves organising their affairs and planning for their care needs in the future. One of the most important considerations is how you will meet any potential care costs. As care is means tested, any investments, assets (such as property) and other finances will be taken into account during the assessment process. You can find out more information on nursing home fees and care costs here.
A Power of Attorney is a legal document created to help you and a loved one plan for their future. The document gives another person – referred to as the attorney – formal permission to handle financial and personal aspects of a loved one's affairs.
There are two types of Power of Attorney available in Scotland, however most people choose to have a combined Continuing and Welfare Power of Attorney.
This type of Power of Attorney allows the trusted person to make decisions about the loved one's property and finances, and can be activated immediately after it has been registered. The granter (the person creating the Power of Attorney) can decide whether they want these powers to only be used if they become incapable of making their own decisions, and this must be clearly stated in the legal document.
A Welfare Power of Attorney gives a person the authority to make health and welfare decisions on the granter's behalf. Unlike a Continuing Power of Attorney, the Welfare Power of Attorney cannot be used until the loved one is unable to make their own decisions.
Without a Power of Attorney, nobody has the automatic right to handle personal or financial affairs of a loved one, not even a family member. Instead, they may be forced to go to court to obtain a Guardianship or Intervention Order.
A Guardianship Order enables someone to act on behalf of a loved one who may be incapacitated. These decisions can be in relation to things like payments and bills, bank accounts and welfare. If a Power of Attorney is not in place, having a guardianship can help you to act on behalf of a loved one, especially in cases where decisions need to be made over a long period of time.
You should obtain legal advice from a solicitor before applying for a Guardianship Order to ensure that it is the correct decision for you and your loved one. A solicitor can help you compile the application, which must be supported by two medical reports and one further report depending on the type of powers being sought through the guardianship (such as financial, welfare powers, or both).
You can be a welfare guardian, financial guardian, or both, with a guardianship lasting for three years or longer if required. Any person can apply to be a welfare or financial guardian. A solicitor or accountant can also be a financial guardian. If no one is available to apply for financial guardianship, the local council has a duty to apply to protect an adult and their property. When a guardian is appointed, their actions are supervised by the local authority and by the Office of the Public Guardian.
At watersrule solicitors, we can help you plan for future legal and family issues that may occur in later life if a loved one needs care. We can help you take steps to arrange Power of Attorney, guardianship or to draft a will to ensure that your family member gets the support they need and as much control as possible over their life decisions. Contact us today at our Stirling office on 01786 235 235 or at our Tillicoultry office on 01259 753 330 to speak to our team.
