It is commonly thought that we will be able to make decisions for an adult family member who no longer has the capacity to look after their own affairs. This is not the case. Your spouse, partner, children or other loved ones are powerless to make any decisions on your behalf unless you have appointed them in terms of a power of attorney.
Many people have heard of power of attorney but are under the impression that they can leave it until they need it, but by then it's too late! You can only appoint a person to act as your attorney if you have the capacity to make your own decisions. If you no longer have such capacity, whether as a result of a medical condition or an accident, the decision about who looks after your affairs is taken out of your hands and the Court decides what is best for you, after a lengthy process. In some cases decisions regarding you may even be taken out of the hands of your family and responsibility for looking after the welfare of a loved one is taken over by the Chief Social Worker of the local authority.
Powers of Attorney are usually drawn up by a solicitor but you can draft the document yourself. However, it is advisable to take advice as it is quite a complex document and, when completed, it must be signed by either a doctor or a solicitor. In terms of current legislation, to be valid, it must be registered with The Office of the Public Guardian.
There are two parts to a power of attorney, one part covering your finances and day-to-day affairs and the other covering your health and welfare. You can appoint the same person to cover both parts or it is also possible to appoint one person to cover finances and a different person to cover health and welfare.
Problems regularly arise when a person in hospital, and ready for discharge, cannot be discharged due to lack of capacity and they have not appointed an attorney. In these circumstances, the person is placed on delayed discharge until a Guardian is appointed through the local court. This procedure is very stressful for the person in hospital and for the family and can be avoided if power of attorney is in place.
It costs NHS Scotland millions of pounds every year looking after patients in hospital who have not appointed an attorney and are medically fit but cannot be discharged due to incapacity.
The cost of drawing up a power of attorney often puts people off. Compared to household contents insurance which is an annual cost just in case something happens to our personal belongings, drafting a power of attorney is a one off cost just in case you need someone to look after your finances and your health and welfare.
Appointing a family member or friend to act as your attorney and carry out your wishes if you are no longer able to do so yourself is very important. It is a positive step in your future planning and, should you ever need it, avoids unnecessary delay and stress for you and your family. Don’t leave it until it is too late.
Case study 1
Mr X was admitted to hospital after a fall at home. He had previously been diagnosed with dementia and had been assessed as lacking capacity. He was treated and within a short time was medically fit to be discharged. However, in the time he was in hospital his capacity had deteriorated and it was deemed that he was no longer able to look after himself at home.
Mr X is a widower and has four children. He did not have a power of attorney so the children were consulted to arrange a court order to allow him to be moved from hospital. Meanwhile, Mr X was placed on delayed discharge. Unfortunately, there was a split in the family and a complete difference of opinion. Two of the family wanted him moved North to be with them and the other two wanted him to stay local. Both pairs of children made an application to the Court for guardianship. It was clear to the Court that the children were never going to agree so it was decided that none of the family was suitable to be welfare guardian. Welfare guardianship was granted to the Chief Social Worker of the Local Authority.
The Court procedure took almost three months during which time Mr X was in hospital on delayed discharge. If Mr X had granted a power of attorney when he had capacity, his attorney would have been able to make the decision to move him from hospital as soon as he had become medically fit to be discharged. This would have avoided a three month stay in hospital for Mr X.
Case study 2
Mrs Y suffered a major stroke and was admitted to hospital. She was assessed as lacking capacity and it was clear that she would no longer be able to care for herself. Mrs Y had appointed her son and daughter to be her attorney two years prior to this. They were able to arrange care in the home and she was moved from hospital by her children as soon as she was medically fit to be discharged.
Case study 3
Mrs Z had been diagnosed with dementia. She lived at home with her husband. She was admitted to hospital as an emergency and required an operation. Notwithstanding that Mr and Mrs Z had been married for 55 years, the consultant asked Mr Z for a power of attorney before he would discuss the case with him. Luckily, Mr and Mrs Z had granted powers of attorney in favour of each other so he was able to speak with the doctors immediately.