Legal isses

1. Power of attorney

Granting a power of attorney is the principal anticipatory method of dealing with incapacity. A “Power of Attorney” is simply a legal document signed by a person who has capacity authorising another party or parties to act on their behalf in their affairs should the granter be incapacitated. In Scotland there are two main types of power of attorney. – ‘Continuing’ and ‘Welfare’ powers of attorney. Continuing Powers of Attorney contain powers over the adults property legal and financial affairs and Welfare Powers of Attorney contain powers over matters such as the adult’s abode, dress, medical treatment etc. Both types of powers may be combined in one document. It is possible for an adult to grant different people to have different powers or one person to have all it all depends on the adult’s wishes.

A power of attorney can only be granted by someone who has capacity. Consequently if a “capacity threatening” illness arise it is desirable if a power is granted early. Powers of attorney expire on the death of the adult.

The power of attorney must be registered with the Scottish Office of the Public Guardian. For more details see their website: www.publicguardian-scotland.gov.uk or call 01324 678300.

2 Guardianship Orders and Intervention Orders

When the legal state of “incapacity” arises and there is not in place any other way of dealing with the person’s affairs (such a previously granted Power of Attorney) an application must be made to court for either an Intervention Order or a Guardianship Order. An Intervention order deals with a specific issue – such as for example applying to court to sell a person’s house to raise funds. On the other hand a Guardianship Order is appropriate if long term and continuing management of a person’s affairs is needed. It will depend on the circumstances of the person with incapacity as to which order should be sought.

3 Powers in Guardianship Orders

Someone applying to the court to become a guardian will have to state in the application to the court what powers he or she wishes granted and why they should be granted. There really are two broad categories of powers which can be sought, first property and financial powers and second welfare powers. In simple terms property and financial powers apply to whatever the incapacitated person owns and receives and has to pay. Welfare powers apply much more to personal issues such as where the adult should stay, what activities the adult should indulge in and what day to day decisions on dress diet, healthcare and so on need to be made.

4 Advance directives, advance decisions and living wills.

It has long been recognised that in Scotland a person with capacity can refuse treatment. Legal difficulties can arise where a person loses capacity and cannot refuse treatment which he or may not want. Advance directives (called various other names such as advance decisions or living wills) get over that problem by the patient stating in writing his or her treatment preferences in advance.

An Advance Directive is simply a clear statement written in advance to someone’s doctors and relatives as to their wishes regarding healthcare and treatment should certain extreme conditions arise. People can put anything they like in a directive but generally people deal with what treatments they may wish to have or refuse when in a terminal condition, with only a short time to live and unable to communicate.

Other Points

• An advance directive is revocable by anyone at any time whilst they have capacity.
• Even a verbal revocation would be accepted by a doctor.
• An advance directive is not a defined statutory document in Scotland but it would be very persuasive if challenged in court say by a relative who wanted to overturn it. For all practical purposes a properly prepared and witnessed advance directive will therefore have clear legal effect.
• It should be sent in first instance to client’s GP to be placed with medical records.
• The welfare attorney or next of kin if no attorney should really be advised it exists and preferably be aware of its contents.
• The normal advance directive only kicks in when a very extreme situation is reached and when the patient is unaware of circumstances.
• Advance directive frequently seek to absolve practitioners of potential civil liability arising from refusal of treatment.
• Parties should be advised to discuss their advance directive with their family and doctor and in particular with any appointed welfare attorney. Once commenced these discussions are often enlightening and helpful to all concerned.

Age Scotland produces factsheets on advance decisions, advance statements and living wills and Lasting Power of Attorney, which might be helpful to read.