Alzeihmers Question of Law
This article appeared in the Mearns Press in July 2006
Question
Answer:
If your father’s mental faculties have not yet been too seriously affected, he may still be able to grant a Power of Attorney. A power of attorney is a legal document authorising another person to make decisions and take action on behalf of the person granting the document.
There are two types of Power of Attorney:
- A Continuing Power of Attorney gives the appointed attorneys power to administer the granter’s financial affairs, either when he asks them to do so, or when he has lost the ability personally to administer his affairs for himself.
- A Welfare Power of Attorney, on the other hand, gives the attorneys power to make decisions concerning the health and personal welfare of the granter. Unlike a Continuing Power, the attorneys under a Welfare Power of Attorney can only act once a Doctor has certified the granter as being unable to make these types of decisions personally.
Your father could appoint you and any of your siblings as his attorneys. Professional persons, such as solicitors or accountants can be appointed, which can be useful if the family do not wish to act. It is less usual to appoint professional persons to act as welfare attorneys because of the more personal nature of the Welfare Attorney’s duties.
Handling the affairs (and particularly the financial affairs) of an elderly close relative can be stressful and, if there are several siblings, some perhaps living at a distance or even abroad, something of a diplomatic challenge for the child ‘on the ground’. Sadly, old sibling rivalries or suspicions can emerge at times like this and family ill-feeling can result. For that reason some children who find themselves in your situation prefer the financial side of things to be handled by the elderly parent’s solicitor or accountant, which can avoid such problems and leave the child free to focus solely on the care needs of their parent.
If your father’s mental faculties have been too badly affected, he will no longer be able to grant Power of Attorney. In that case, you can obtain the powers required to administer his financial or welfare affairs from the local Sheriff Court.
If the powers you are seeking are of an ongoing nature, the application is for a guardianship order. If you are seeking power to carry out a specific act, such as, for example, to sell your father’s house, the powers are obtained through an intervention order.
The Court can, if your family approves, appoint you and/or any of your siblings as guardian or guardians to manage your father’s affairs on an ongoing basis. Solicitors are often appointed in this role if there is no suitable family appointee who has the necessary skills.
As with all legal matters, you should seek professional advice from a suitably qualified solicitor to establish what can be done for your father’s own personal circumstances.
Article compiled by Alasdair Fleming
Posted by Sharon Clift on Jul 16, 2006
