• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
We have moved! Find out more and read our Covid-19 update.
Edinburgh 0131 202 7516
Glasgow 0141 404 0436
  • Home
  • Blog
  • About Us
  • Testimonials
  • Contact Us
  • Fees

Gibson Kerr

Personal, Family Law & Property

Edinburgh 0131 202 7516
Glasgow 0141 404 0436

Make an enquiry

We will call you back

  • Divorce & Separation
    • Divorce in Scotland
    • Separation Agreements
    • International Divorce
    • Cohabitation Rights Scotland
    • Dissolution of Civil Partnerships in Scotland
    • How Can I Resolve My Divorce Dispute?
    • Fixed Fee Family Law Promotion
  • Prenups & Cohabitation
    • Cohabitation Agreements
    • Civil Partnership Agreements
    • Prenuptial Agreements
    • Postnuptial Agreements
  • Child Law
    • Child Residence & Contact Scotland
    • International Relocation of Children
    • Adoption
    • Child Abduction
    • Dispute Resolution Options
    • Hague Convention
    • Education Law
  • Wills & Estate Planning
    • Intestacy
    • Wills & Will Writing
    • Executries
    • Living Wills
    • Unmarried Couples’ Rights on Death
    • Claims on Inheritance by a “Common Law Spouse” (Cohabiting Partner)
    • Probate in Scotland
    • Power of Attorney
    • Guardianship Orders
    • Intervention Orders
    • Estate Planning
    • Cost of Care
    • Trusts
    • Foreign Estates with Assets in Scotland
    • What Happens When Someone Dies in Scotland?
    • Fixed Fee for Wills and Power of Attorney
  • Financial & Tax
    • Financial & Tax Planning
    • Inheritance Tax
    • Insurance Advice
    • Settlement Agreements
  • Residential Property
    • Properties for Sale
    • Buying Property
    • Selling Property
    • Videos: Buying and Selling Property
    • Joint Purchaser Agreements
    • Equity Release
    • Mortgage Advice
    • LBTT / Stamp Duty Scotland
    • Property Transfers
    • Home Reports
    • How to Present Your Property for Sale
    • Boundary Disputes Solicitors
Blog

Dementia and Powers of Attorney – What You Need to Know

5th May 2015 Posted Under: Power of Attorney

Introduction to powers of attorney

Before we go on to discuss powers of attorney in more detail in relation to dementia, we’ll start with a definition:

“A power of attorney is essentially the power to manage someone else’s affairs because that person is incapable of acting on their own behalf”.

When would someone need a power of attorney?

As mentioned above, a power of attorney can be used when someone is incapable of making important decisions about their affairs for themselves. The reasons for this may include:

  • Dementia
  • Being mentally disabled
  • Loss of the ability to communicate
  • Becoming physically disabled
  • Suffering from severe mental illness

It’s not always possible for someone to grant a power of attorney. For example, a person with severe dementia may be deemed incapable of deciding who’s best placed to take decisions on their behalf. We’ll look at this in more detail later in the article.

Power of attorney types

There are three main kinds of power of attorney as outlined below:

Continuing

A continuing power of attorney is used for dealing with an individual’s money and/or property. It can take effect as soon as it’s registered or be used at a later date in the event of your incapacity. A continuing power of attorney can therefore be used while an individual is still capable of dealing with their own finances and property, but for practical reasons would prefer to have their attorney dealing, perhaps due to old age or because they are out of the country for an extended period of time.

Welfare

As the name will tell you, a welfare power of attorney is used for decisions around health and welfare matters. A welfare power of attorney can only ever be used if the individual is incapable of making welfare decisions for themselves.

Combined

A combined power of attorney is made of up continuing and welfare attorney powers.
It’s important that individuals get the right type of power of attorney for their circumstances. We can guide you through your options during an initial meeting so you can make an informed decision.

Who can act as your attorney?

The answer to the question of who can act as an attorney is different depending on the type being granted. For example, for a continuing power of attorney, an individual over the age of 16 or an organisation, e.g. a firm of solicitors, can be appointed.

In the case of a welfare power of attorney, only individuals may be appointed.

A person can appoint as many attorneys as they wish, being either joint or substitute attorneys. The person can choose whether the joint attorneys always have to act together, or can sometimes act alone. It’s best to seek advice from a law firm based on your individual circumstances before deciding how many attorneys to appoint, who to consider and which powers to grant them.

It’s important to note that the person/organisation you nominate to be an attorney must sign a legal document to say they’re willing and able to do so.

Wills & Estate Planning – Fixed Fees Available

More about POAs and dementia

Dementia is a well known term, but the term is often incorrectly interchanged with Alzheimer’s disease. Alzheimer’s disease is one form of dementia.

Dementia is a word used to describe a group of symptoms including memory loss, confusion, mood changes and difficulty with day-to-day tasks. There are many causes of dementia, with Alzheimer’s disease the most common.*

*Source: http://www.alzheimersresearchuk.org/about-dementia/

A power of attorney is a very useful tool for someone suffering from dementia, as it helps ensure their finances and welfare affairs can be looked after for them when they become unable to do that for themselves. It takes away some of the uncertainty about what is going to happen to them when their condition progresses.

The first thing we consider when we are looking at a power of attorney for someone with dementia is whether they have the capacity to grant it. We never assume that, just because they are suffering from dementia, they don’t have capacity – this is something we would carefully consider in each case and may seek the opinion of a doctor to assist.

What is an incapacity statement?

As a welfare power of attorney can only be used in the event of the granter’s incapacity, it is necessary to obtain a medical statement confirming that person’s incapacity before the welfare power of attorney can be used.

Some Continuing powers of attorney may also state that they can only be used in the event of incapacity and a medical statement would therefore be necessary in that case. The following definitions from the Office of the Public Guardian (Scotland) outline what is meant when someone is ‘incapable’.

A person is “incapable” if they are incapable of:

  • Acting on decisions; or
  • Making decisions; or
  • Communicating decisions; or
  • Understanding decisions; or
  • Retaining the memory of decisions

If you’re in any doubt as to what is meant by these definitions, we can talk you through them in a clear and easy to understand manner.

What happens if it’s too late to apply for a power of attorney?

If the person does not have capacity to nominate a power of attorney, then the next step would be for their family/friends to consider applying for a guardianship order for them. This is a court appointed order.

Guardianship orders are generally best suited to situations when decisions need to be taken on behalf of someone on an ongoing basis. A full guardianship order may not be required in every case. There are other options such as an intervention order or an access to funds order that can be considered.

If the adult with dementia puts a power of attorney in place while they still have capacity, it means they are deciding who they want to assist with their affairs and what powers they want to grant them, rather than a court. They should therefore look into this sooner rather than later. If you have a family history of dementia, you should think about putting a power of attorney in place as soon as you can.

Why Gibson Kerr?

We have many years’ experience in dealing with dementia and powers of attorney. We understand how upsetting it can be for everyone concerned when the time comes to think about appointing someone to look after affairs due to incapacity.

We see our role as making the legal process for powers of attorney as simple and straightforward as possible. Whether you’re planning ahead for the future, need a power of attorney set up quickly, or need to apply for a guardianship order for a family member or friend with incapacity, we can guide you as to what’s best for your circumstances.

Lindsay Maclean and Fiona Rasmusen recently represented Gibson Kerr at a Ladies Lunch organised by Alzheimer Scotland where £9019 was raised for the charity.

Additionally, following on from the lunch all members of our staff have become dementia friends. Being a dementia friend is about understanding a bit more about dementia and the small things you can do to help people with the condition.

Summary

Appointing a power of attorney may seem like a daunting experience if you haven’t done it before. We can take the worry out of the process by talking you through it in a clear and easy to understand way.
Below is a short overview of some of the key points we’ve covered in this article:

  • There are three main types of power of attorney – continuing, welfare and combined
  • Any individual being appointed as an attorney must be at least 16 years old
  • Your chosen attorney must be someone who’s willing to take on the responsibilities of the role and understands what’s required
  • A statement of incapacity must be obtained before using a welfare power of attorney
  • If someone isn’t capable of making a decision on their power of attorney, a court appointed guardianship, intervention or access to funds order may be required

Disclaimer: The contents of this article cover Scots Law and are for information purposes only. This article does not constitute legal advice.

Related

Can a Scottish Power of Attorney be used in England?

Can a Scottish Power of Attorney be used in England?

28th June 2021

Why is Power of Attorney important?

Why is Power of Attorney important and can I still do it during lockdown?

21st May 2020

Video: Busting the Myths about Power of Attorney – 7 Myths Busted

18th November 2019

Primary Sidebar

Blog Categories

  • Careers in Law
  • Child Law
  • Divorce
  • Education Law
  • Elderly Care
  • Executries
  • Family Law
  • Financial & Tax
  • Guardianship
  • News
  • Personal Law
  • Power of Attorney
  • Prenuptial and Cohabitation Agreements
  • Property
  • Property Transfers
  • Separation
  • Trusts
  • Uncategorised
  • Wills

Latest posts

Family Law experts push to become mediation market leader

28th April 2022

Purdie & Co trust Gibson Kerr with Wills and Powers of Attorney

18th March 2022

International Women’s Day #BreakTheBias

8th March 2022

Footer

Edinburgh 0131 202 7516
Glasgow 0141 404 0436

Make an enquiry

We will call you back

Locations

Edinburgh

Family Law, Personal Law
&
Property Law

6 Randolph Crescent
Edinburgh
EH3 7TH

t: 0131 202 7516
f: 0131 557 5215

e: edinburgh@gibsonkerr.co.uk

Open: 8:30-17:00, Monday - Friday

Glasgow

Personal Law & Family Law

100 West George Street
Glasgow
G2 1PJ

t: 0141 404 0436

e: glasgow@gibsonkerr.co.uk

Open: 8:30-17:00, Monday - Friday

  • Family Law
  • Personal Law
  • Property Law
  • Home
  • Blog
  • Disclaimer
  • Cookie Policy
  • Privacy Policy
  • Legal Notice

© 2022 Gibson Kerr · Site by Kate Amann

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent. See our cookie policy.
Cookie SettingsReject AllAccept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-advertisement1 yearSet by the GDPR Cookie Consent plugin, this cookie is used to record the user consent for the cookies in the "Advertisement" category .
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
CookieLawInfoConsent1 yearRecords the default button state of the corresponding category & the status of CCPA. It works only in coordination with the primary cookie.
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
CookieDurationDescription
_ga2 yearsThe _ga cookie, installed by Google Analytics, calculates visitor, session and campaign data and also keeps track of site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognize unique visitors.
_gat_gtag_UA_110715042_11 minuteSet by Google to distinguish users.
_gcl_au3 monthsProvided by Google Tag Manager to experiment advertisement efficiency of websites using their services.
_gid1 dayInstalled by Google Analytics, _gid cookie stores information on how visitors use a website, while also creating an analytics report of the website's performance. Some of the data that are collected include the number of visitors, their source, and the pages they visit anonymously.
CONSENT2 yearsYouTube sets this cookie via embedded youtube-videos and registers anonymous statistical data.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
CookieDurationDescription
_fbp3 monthsThis cookie is set by Facebook to display advertisements when either on Facebook or on a digital platform powered by Facebook advertising, after visiting the website.
fr3 monthsFacebook sets this cookie to show relevant advertisements to users by tracking user behaviour across the web, on sites that have Facebook pixel or Facebook social plugin.
IDE1 year 24 daysGoogle DoubleClick IDE cookies are used to store information about how the user uses the website to present them with relevant ads and according to the user profile.
test_cookie15 minutesThe test_cookie is set by doubleclick.net and is used to determine if the user's browser supports cookies.
VISITOR_INFO1_LIVE5 months 27 daysA cookie set by YouTube to measure bandwidth that determines whether the user gets the new or old player interface.
YSCsessionYSC cookie is set by Youtube and is used to track the views of embedded videos on Youtube pages.
yt-remote-connected-devicesneverYouTube sets this cookie to store the video preferences of the user using embedded YouTube video.
yt-remote-device-idneverYouTube sets this cookie to store the video preferences of the user using embedded YouTube video.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
Powered by CookieYes Logo