Power Of Attorney v's Guardianship (Scotland)

4771_Miles_To_Caracas

Nothing to see here

rogerblack

http://www.justice.gov.uk/about/opg
http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/index.htm

It is quite a complex area.

The scottish public guardians office is at http://www.publicguardian-scotland.gov.uk/
http://www.publicguardian-scotland.gov.uk/faqs/index.asp

Richie-from-the-Boro

4771_Miles_To_Caracas wrote: »

My family is having a dispute with my Mothers residential home over aspects of her care, one of the outcomes is that today the Social Work department is going to seek Guardianship of my Mother, so in effect they can steam roll over my families decisions about my Mothers care, my Mother is in agreement about our decisions but they are trying to suggest she is mentally incompetent because she doesn't agree with them.

We were only told in a meeting late this afternoon that they were going to seek Guardianship so we have drafted a Power of attorney for her to sign this evening and I want to know if they can have it overturned in court?

Financial Guardian or Welfare Guardian ?

- no idea, but the majority of applications are granted by the sheriff without a formal hearing
- family members have the right to make an application to the sheriff for Guardianship themselves, or ;
- the right to object to an application by the Council or even a~n~other relative

Either way the family have a right to be heard by the sheriff before any application is granted. Make sure the sheriff is very aware of your objections ASP ! You may want to consider a formal Guardianship application to the sheriff in addition to a PoA.

Best of luck.

troubleinparadise

Has your mother been deemed "not to have capacity" by a doctor? I think that would be necessary, rather than the Care Home's assessment of her mental competency.

That would also be an important issue in whether you can get your mother to sign a Power of Attorney - again, a solicitor may have to confirm that she has capacity to understand what she is agreeing to if it is to have legal validity.

GlasweJen

Get a lawyer.

We have been barred from seeing our aunt who is physically and mentally disabled because she inherited a house and social services saw pound signs. Her house is up for sale as we speak even though the guardianship order is being fought through the courts.

We applied for welfare guardianship with our solicitor having financial guardianship and social services still argued we only wanted the money. Our lawyer almost died of shock when we showed him photos of the "for sale" sign outside her home. Although she needs carers there is no way our relative can cope in a care home.

sleepless_saver

" We were only told in a meeting late this afternoon that they were going to seek Guardianship so we have drafted a Power of attorney for her to sign this evening and I want to know if they can have it overturned in court? "

You will need someone (e.g. doctor or solicitor) to certify that she has capacity before she can make a valid PoA.

I'd get legal advice, and quickly.

You could also try contacting Alzheimer Scotland 0808 808 3000 for advice and support (if she has dementia).

valk_scot

Yes, if you want it signed today you'll need a solicitor or doctor to certify she can do so. When my mum took suddenly ill and my sister and I needed to arrange joint PofA very quickly we ended up having to get the solicitor to go to the hospital to speak to mum before the documentation was signed. Fortunately the solicitor invoved was an old family friend who was willing to go out that evening, otherwise we might not have managed to get it done in time. Also he was kind enough to waive his fee as he'd known my mother for many years, otherwise it wouldn't have been cheap.

After that my sister applied for full financial PofA (with my mother's blessing, she made it through the emergency op) and I did the day to day dealings with the hospital and SS. It's a very, very useful thing to have in place, my mother could have continued to handle her own affairs but she was happy to let us deal with things for her, we were a pretty forceful team, my sis and I.

Errata

A solicitor can't assess mental capacity.

troubleinparadise

A solicitor can't assess mental capacity.

A solicitor can make a judgement that the person concerned understands what they might be agreeing to in signing a Power of Attorney form

Errata

Solicitors are not medically qualified and can't make an assessment of competency. Only a qualified medical practitioner can do that, and they will always add the caveat that their assessment can never be more than their opinion at the point they made their assessment.

rogerblack

Errata wrote: »

Solicitors are not medically qualified and can't make an assessment of competency. Only a qualified medical practitioner can do that, and they will always add the caveat that their assessment can never be more than their opinion at the point they made their assessment.

And of course, some of the forms of guardianship absolutely can't be entered into without the opinion of a relevant medical person.
A solicitor simply can't legally do it, anymore than he can do brain surgery.