Making financial or welfare decisions for the person you care for
The person you look after may ask you, their partner or another family member or someone they trust to look after their legal, financial and welfare rights once they become too ill to do so. To give you the legal right to do this, they will need to see a solicitor and sign a power of attorney. If the person isn't able to sign a power or attorney, you may be able to apply for a guardianship or intervention order.
What is a power of attorney?
A power of attorney is a legal document that gives you the right to act on behalf of the person who signed it. A power of attorney gives the attorney the ability to do everything the person would otherwise be able to do for themselves. There are different kinds of power of attorney, which will allow you to do different things. For example, the person who signs the power of attorney (called the 'granter') may want you to have the right to:
- pay the rent or mortgage and other household bills from their bank account
- arrange and pay for repairs or adaptations to be carried out to their home
- collect benefits, a pension or self-directed support (direct payments) on their behalf
- sell their home or give up their tenancy
- pay for their care from their bank account
- make decisions about their medical treatment.
The two main types are a continuing power of attorney and a welfare power of attorney.
What if the person I care for hasn't signed a power of attorney?
If the person you care for has a degenerative illness such as dementia, or is likely to reach a stage when they can no longer make their own decisions, you may have to raise the issue of getting a power of attorney. This is a very sensitive subject, and you may not feel comfortable talking about it. However, it will make things much more straightforward for you both later on.
You must be very careful not to put any pressure on the person to sign a power of attorney. Get a solicitor involved as soon as possible - our page on solicitors has information on how to get legal advice. They have a duty to be sure that the granter is not under any influence or pressure ('duress') when they sign. If the granter signs a power of attorney under any pressure, it can be challenged and cancelled ('reduced') later on. If a power of attorney is reduced, you will no longer be able to act on behalf of the granter.
If the person hasn't signed a power of attorney and is now no longer able to make their own decisions, you can apply to the Office of the Public Guardian (OPG) to access their bank account. For example, you may need to do this if the person needs to move into and pay for residential care. You can only do this if no-one else has the power to do so. Alternatively, you can apply for a financial guardianship order (see 'what is a guardianship order').
If you need to make a one-off decision for the person, for example about selling their home, signing a tenancy agreement or receiving medical treatment, you can apply for an intervention order (see 'what is an intervention order' below).
What is the Office of the Public Guardian (OPG)?
The Office of the Public Guardian looks after the interests of adults who are no longer able to do so for themselves. All powers of attorney made on or after 1 April 2001 must be checked by and registered with the OPG.
Where can I find out more being an attorney?
Being an attorney is a big responsibility, and you will have a legal duty to act in the person's best interests. You can find out more about being an attorney at the Scottish Government and OPG websites.
What if the person I look after can't sign a power of attorney?
There may be situations when an adult you care for can't grant you a power of attorney. For example, this could be the case if:
- your child has turned 16 but has a severe disability which means they can't make their own decisions as an adult
- the person you care for has had an accident and can no longer make decisions (for example, because they have received a brain injury)
- the condition of the person you care for has deteriorated too rapidly for them to sign a power of attorney.
In this case, you can apply for a guardianship or intervention order. There are two kinds of orders, welfare and financial.
A guardianship order gives you legal authority to make welfare or financial decisions for the person you look after. Usually guardianship orders are only granted to relatives, although they may be granted to friends or professionals (for example, the person's lawyer) in certain circumstances.
You can apply for an intervention order if you need to make a 'one off' welfare or financial decisions for the person you look after, for example, if you need to sell their home for them or decide whether they should receive medical treatment.
How do I apply for a guardianship or intervention order?
If you need to get a guardianship or intervention order, you must make an application to the sheriff court. The sheriff will decide whether the person you look after needs a guardian or intervener and whether you are suitable. If the sheriff grants the order, it is registered with the OPG and can then be put into operation.
Speak to a solicitor if you need to apply for a guardianship or intervention order. In this situation, you will be able to get legal aid to cover the costs, regardless of your income.