Appointing a guardian, even when you're healthy, can be a sound move

Published on Friday 3 July 2009 20:28

YOUNG, healthy adults don't take out insurance because they are worried about becoming sick or incapacitated. They are just seeking to ensure that they and their families will be protected financially should this remote possibility happen.

While this type of insurance produces a lump sum that compensates for lost income, it does not mean that the insured person's wishes will necessarily be carried out if he or she becomes mentally incapacitated.

This is why granting a power of attorney (POA) – in case illness or accident takes away a person's ability to act for him or herself – is just as important as accident or health insurance. The relevance of appointing an attorney is not confined to older people who fear that they might soon be unable to act or think straight because of, for example, Alzheimer's disease.

Unfortunately people in the prime of life do, through accident or illness, fall victim to non-fatal conditions so debilitating that having someone act on their behalf is essential.

When a person loses mental capacity and a POA is not in place, his or her relatives may be forced to make a court application for the appointment of a guardian.

A guardian will in essence perform a similar role to an attorney, but the effort and expense involved in obtaining the same powers is very different.

The appointment of a guardian involves an application to the sheriff court and is much more time-consuming and costly than granting a POA.

An application can be submitted to appoint either a financial or a welfare guardian, or someone to carry out both functions. Whichever guardian is appointed, reports must be obtained to support the application.

Two medical reports are required and a report from the adult's GP is usually the starting point for the first of these. A report on the suitability of the proposed guardian is also required.

This is sometimes sought from a solicitor but in some circumstances must be obtained from either the mental health officer or chief social work officer of the relevant local authority. There are also strict deadlines in relation to the lodging of applications and reports which, if not met, will likely result in an application failing.

The appointment of a guardian is often made easier with input from a solicitor specialising in this area or by seeking advice from the Office of the Public Guardian.

Nevertheless, costs for a guardianship application will often run into thousands of pounds by the time legal costs, fees paid for reports and court dues are tallied.

Therefore, given that many people are said to fear serious incapacity even more than death, a POA does make sense. As with guardianships you can appoint an attorney to deal with your financial affairs, your personal welfare or both. An important point to remember is that not all POAs will continue in force should you lose capacity.

So, while it can be difficult to think ahead to the future, doing so will mean that, even if something does happen to you, your affairs can be managed swiftly, smoothly and by the people you choose.

&#149 Emma Carey and Sarah Chilton are solicitors with Murray Beith Murray WS in Edinburgh.