Buzz Aldrin is famous for being one of the first humans to set foot on the moon as part of the Apollo 11 mission in 1969. Nearly 50 years later, he continues to make public appearances, and continues to be an advocate for space exploration.
Recently, it has been reported that Mr Aldrin’s family are concerned that he is suffering from memory loss, delusions, paranoia and confusion. They claim that he has dementia, and is vulnerable to financial manipulation. As a result, they have asked a judge to appoint them as his legal guardians.
In response, Mr Aldrin is suing two of his children and his business manager, alleging fraud, exploitation of the elderly, and slander by asserting that he has dementia. He has alleged that they have assumed control of various assets, and that they have not been acting in his best interests.
A court-appointed mental health expert is to evaluate Mr Aldrin and conduct a competence examination.
Sadly, there can be issues which arise in families where there is a concern about a relative’s capacity or possible manipulation, and which the law requires to address in a sensitive manner. So how does the law in Scotland deal with such issues?
Power of Attorney
If you have capacity, then you can grant a Power of Attorney. This is a legal document appointing a trusted individual as your Attorney to act or make decisions on your behalf should you become unable to make the decisions for yourself. These decisions could be about day-to-day things such as what to wear or when to pay a bill‚ or they could be more important decisions such as where you should live or whether you should have a certain type of medical treatment.
A Power of Attorney can be customised with regard to when your Attorney can access your financial accounts. This can be either as soon as the Power of Attorney is signed and registered, or if something happens and you lose the ability to make decisions on your own.
The Power of Attorney document also includes a certificate which requires to be signed either by a solicitor who is registered to practise law in Scotland or by a registered UK medical doctor who holds a licence to practise. This certificate confirms that a solicitor or doctor has interviewed you, they are satisfied that you understand the nature and extent of the document, and that they have no reason to believe that you are acting under any undue influence.
If an individual does not have capacity, then they cannot grant a Power of Attorney and the court requires to authorise someone to make decisions on their behalf.
In Scotland, the Adults with Incapacity (Scotland) Act 2000 sets out the legal framework for those who wish to be appointed to make decisions on behalf of someone who does not have capacity.
Anyone with an interest in the adult can apply to the Court for a Guardianship Order. This could be a family member, a carer, a friend or a professional person (such as a solicitor). The local authority is under an obligation to apply for an Order if it is necessary, and there is no other person who is applying for an Order.
Powers can be requested to deal with the adult’s property, financial affairs and/or welfare. The powers requested must always represent the least restrictive intervention.
The application process can take several months to complete, as various reports must be completed before the application to the Court can be made.
Two independent medical reports require to be lodged with the Guardianship application. These reports require to be based on the medical practitioner’s assessment of the adult, and they require to detail the condition of the adult which they believe has impaired the capacity of the adult.
A suitability report is also required. If the proposed Guardian is seeking welfare powers, the suitability report must be provided by a Mental Health Officer. If no welfare powers are sought, then the report can be provided by a person “who has sufficient knowledge to make such a report”, for example an accountant or friend. This report is to detail the writer’s opinion as to the appropriateness of the powers applied for, and the suitability of the proposed Guardian. This opinion must be based upon an assessment of the Adult, and discussions with others involved in their care, such as family members or carers.
These assessments should have been carried out within 30 days of lodging the Guardianship application in Court.
The application and the accompanying reports are served on the adult, and any other person who may have an interest, such as family members. This provides an opportunity for any objections to be made. A Hearing then takes place for the Sheriff to decide if the application should be granted.
Based on the adult’s condition and circumstances, the Sheriff will decide how long the Order should last. It is usual for Orders to be granted for a period of 3 years; however it might be granted for a longer period of time or indeed for the lifetime of the adult.
The law in Scotland aims to protect adults who lack capacity, but also to support them as much as possible. The principles of the Act must always be adhered to, including taking into account the present and past wishes of the adult, and to support them to express their view. There is a great focus upon the adult and their wishes throughout the process.
Blog by Amy Wardrop, Solicitor