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Latest family law and divorce news and updates from Family Law Inverness. Telephone: 01463898650

Guardianship Orders and Powers of Attorney

A recent Court of Session case has demonstrated the importance of Power of Attorney and Guardianship Orders when someone becomes unable to take care of their affairs.

Mary Gallacher died on the 31 March 2011 at the age of 96. She had been suffering from advanced dementia at the time when she signed a deed of disposition to transfer the ownership of her home to other family members. Her niece, Shelia Ritchie, was the executor of the estate and sought a reduction of this disposition on the basis that her aunt was incapax (lacking capacity) when the property was transferred. The executor is the person nominated by the deceased to wind up the estate by making a calculation of the estate, paying debts and paying out to the beneficiaries in accordance with the will and succession law. Ms Ritchie argued that her aunt did not have the mental capacity necessary to grant the disposition due to her dementia.

After hearing evidence from various medical professionals, the Judge, Lord Clarke, ruled that Ms Gallacher did not have the necessary mental capacity to transfer the ownership of her home and granted a deed of reduction. Lord Clarke said, “The medical evidence given by the pursuer’s medical witnesses, I found to be compelling and persuasive both in content and in the manner of its presentation . . . the appropriate mental capacity in July 2007 for granting a disposition of the kind with which the present proceedings are concerned, did not exist.”

Power of Attorney

When an adult loses mental capacity, it can be an incredibly upsetting and challenging time for the adult and their family. If someone has lost capacity, they cannot make decisions for themselves. As in the case of Ms Gallacher, if someone has lost capacity and they do make a legal decision, this could later be challenged in court.

Having a Power of Attorney in place before capacity is lost can make this time much easier. You can select who you want to act as your attorney, and you only need to transfer as much power as you are comfortable with. A Power of Attorney can cover financial, welfare or both.

Guardianship Order

In cases where someone loses capacity, and there is not a Power of Attorney in place, you can apply for a Guardianship Order. This requires an application to be made at the Sheriff Court closest to where the adult is living. As part of the process, medical reports and a suitability report must be submitted. The court will determine whether the granting of a Guardianship Order is appropriate under the precise circumstances of the case.

The Office of the Public Guardian supervise guardians with financial powers to ensure that powers are not abused.

Contact Family Law Inverness

If you would like to find out more about Power of Attorney and Guardianship Orders, please contact our friendly family law team today. You can contact us by filling out our online enquiry form.

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