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Understanding the Difference Between Power of Attorney & Guardianship

Poa or guardianship

Understanding the differences between Power of Attorney and Guardianship in Scotland is important, as both play significant roles in safeguarding the interests of individuals who may require assistance.

In Scotland, there are legal arrangements in place to ensure the welfare and protection of individuals who may need assistance in managing their affairs. Whether it is planning ahead with a Power of Attorney or seeking a Guardianship for someone lacking capacity, taking appropriate measures ensures the best possible care and support.

This article will explore Power of Attorney and Guardianship. We will clarify what these terms mean and outline the distinctions between them.

What is Power of Attorney?

Power of Attorney (PoA) is a legal document that grants authority to a trusted individual (known as the Attorney) to act on behalf of another person (known as the Granter) with regards to their finances, welfare, property, or personal matters. This appointment must be made when the Granter has capacity to understand the nature and consequences of the document. The Power of Attorney document requires to be registered with the Office of the Public Guardian in Scotland.

What is Guardianship?

Guardianship, on the other hand, comes into play when an individual lacks capacity to make their own decisions and does not have a valid Power of Attorney in place. Guardianship is a legal process regulated by the Mental Health (Care and Treatment) (Scotland) Act 2003, and the guardianship order granted by the Court will authorise someone to deal with the property and finances and personal welfare, or a combination of both, of the adult with incapacity. The appointment of a Guardian is overseen by the Office of the Public Guardian in Scotland.

What are Differences between Power of Attorney and Guardianship?

Decision-making process:

With Power of Attorney, the granter voluntarily appoints someone to act on their behalf before losing capacity. By contrast, Guardianship is implemented when someone is deemed to lack capacity and there is no Power of Attorney in place.

Level of control:

With Power of Attorney, the Granter chooses and sets the powers, duties, and limitations of the Attorney. With Guardianship, decisions are made by the appointed Guardian based on the best interests of the incapacitated individual.

Legal process:

A Power of Attorney is established without Court involvement, whereas Guardianship requires a legal application to the Court and approval from the Office of the Public Guardian in Scotland.

If you or your loved one in Scotland requires assistance in setting up a Power of Attorney or navigating the Guardianship process, Burnett & Reid are here to help. Contact our experienced team for guidance and support in ensuring the protection and welfare of those who matter most.