The Adults with Incapacity (Scotland) Act 2000 governs both guardianship orders and powers of attorney, which are frequently misunderstood and used interchangeably in conversation. Despite serving the same general objective, each is tailored to a particular circumstance. It is crucial to comprehend the distinction if you are worried about your ability to make critical selections in the future or the capacity of someone close to you.

Defining Guardianship Order

The Adults with Incapacity (Scotland) Act 2000 governs both guardianship orders and powers of attorney, which are frequently misunderstood and used interchangeably in conversation. Despite serving the same general objective, each is tailored to a particular circumstance. It is crucial to comprehend the distinction if you are worried about your ability to make critical selections in the future or the capacity of someone close to you.

Defining Power of Attorney

A Power of Attorney is a legal document that allows a nominated individual, typically a family member or close friend, to act on the granter’s behalf should they lose capacity and become unable to make decisions for themselves. the choices that can be taken about your financial situation and general well-being.

If you lose your ability to make choices due to physical or mental incapacity or both, and there is no Power of Attorney in place, your family and friends may need to ask the court for permission to act on your behalf. This can be a protracted and difficult process. By enabling you to designate an agent, a power of attorney offers you control over your future.

What is the difference between the power of attorney and guardianship

The fundamental distinction between the two is that a Guardianship Order can be issued when someone lacks capacity, whereas a Power of Attorney can only be issued by someone who has full mental capacity. There are also further differences:

• A solicitor draughts and handles a power of attorney. A sheriff decides whether or not to grant a Guardianship Order after reviewing an application that has been submitted with the assistance of a counsel.
• A Power of Attorney remains in effect until it is withdrawn or the person issuing it passes away, whereas a Guardianship Order is only valid for a specific period of time (often 10 to 15 years) unless it can be demonstrated that it should be granted for a longer time.
• A Guardianship Order deals with the circumstance when an adult already lacks the ability and cannot make decisions for himself or herself, whereas a Power of Attorney can only be given if the person issuing it can understand and coherently communicate their wishes.
• An insurance policy is comparable to a power of attorney. Even though you might never need it, it is still available.

Contact our Private Client Solicitors in Glasgow

We have locations in Edinburgh, East Kilbride, and Glasgow. Call us at 0808 169 7033, fill out our online contact form, or stop by one of our offices in Glasgow or Edinburgh for a free* consultation with a member of our law team.