Granting Power of Attorney is as important as making a will

Issued by NHS Highland

NHS Highland, The Highland Council, local solicitors and voluntary organisations are launching a joint campaign encouraging everyone in the region to plan now for the time when they may no longer be able to make decisions for themselves.

They are pointing out that granting a Power of Attorney (PoA), to enable a family member or friend to make decisions for them when they no longer have the mental capacity to do so themselves is as important as making a will.

Failure so to do can result in long delays in accessing the necessary services and may mean the individual has to stay in hospital, when they no longer need to be there for clinical reasons, because no one has the authority to allow them to be admitted to a care home without a lengthy court process.

A PoA is a written document giving someone else authority to take actions or make decisions on behalf of the person concerned. The individual chooses the person or persons they want to help them, called an attorney, and decides what powers they should have.

They also decide how they want their incapacity decided, so it is clear when they want the attorney to act on their behalf.

There are two main types of PoA – Continuing PoA, which deals only with money or property, and Welfare PoA, which enables the attorney to make decisions on the person’s health or personal welfare. The best way to make sure all eventualities are covered is to do both.

Solicitor Lisa Law, of Innes and Mackay, Inverness, said: “Most people are unaware of the importance of granting Power of Attorney and, among those who are aware, there is a common misconception that they don’t need to appoint an attorney as they still have full capacity.

“However, you can only grant a Power of Attorney if you have capacity. If you have an accident or an ongoing medical problem, which leaves you incapable of looking after your own affairs, it’s too late.

“Without a Power of Attorney, your family or friends will have to apply to the courts for a Guardianship Order to allow them to make decisions on your behalf and this can be a lengthy and far more costly process.

“When you appoint a family member or friend as an attorney, you are taking a positive step by choosing someone you trust to look after your affairs and not leaving that decision to the courts,” said Ms Law.

She explained that, as with making a will, it is possible to draw up a PoA without the help of a solicitor, but it is much safer to employ a solicitor to do it as any mistakes could render the PoA useless when it is needed.

NHS Highland Consultant Physician in Medicine for the Elderly, Martin Wilson, said arranging Power of Attorney was important for everybody, not just older people.

Dr Wilson explained that problems could occur when patients needed to be transferred from hospital to a care home, but no one had the right to make that decision for them.

He said: “It comes as a terrible shock to patients and their families to discover that their family doesn’t automatically have the right to make this decision for them.”

Graeme Mackinnon, who is The Highland Council’s Older Adults Team Manager for South Sutherland and Easter Ross, said: “As a social worker, I realise that many people fail to appreciate that no-one has the automatic right to make welfare or financial decisions on their behalf without legal authority.

“Sadly, I see many people who have become stuck in hospital for many months after being fit for discharge - hospitals are important when we are sick, but we should not have to stay any longer than necessary.”

Sheila MacIver, who is Highland Involvement Officer with Alzheimer Scotland, said setting up Power of Attorney was important for everyone, but was especially so once someone had a dementia diagnosis.

And Eileen Wilson, of Age Concern Scotland and Help the Aged, said the charities received many requests for information from older people and their relatives inquiring about what happened when someone needed help with the collection of benefits and/or the management of their financial affairs.

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