Argyll and Bute Health and Social Care Partnership (HSCP) are actively supporting and promoting Power of Attorney. This is an important issue that could potentially affect hundreds of people living across Argyll and Bute.
The initiative is led by Health and Social Care Scotland and has gained support from various partners across the public, private, and voluntary sectors, including the Office of the Public Guardian (Scotland), the Scottish Legal Aid Board, the Law Society of Scotland, Alzheimer Scotland, carers’ networks, and advocacy groups throughout Scotland.
Power of Attorney (PoA) is not limited to people who are older or unwell. No one can predict when they may face an unforeseen illness, accident or other debilitating event that may render them incapacitated. Therefore, everyone needs to consider setting up a Power of Attorney at any stage of life to avoid any future complications.
Jillian Torrens, Argyll and Bute HSCP, Head of Adult Services (Mental Health, Acute and Complex Care) said: “I recommend that individuals take steps to protect their interests during their lifetime by obtaining a power of attorney. This is a simple document that authorises a trusted family member or friend to act on your behalf in the event that you are unable to make decisions on your own.
“I would like to take this opportunity to highlight that PoA does not mean giving away your power or legal rights, nor does it replace your will."
What is a power of attorney?
A power of attorney document is drawn up by an adult (the granter), giving specific powers to someone they trust to make decisions or take actions on their behalf. This person is called their attorney.
The powers granted can be financial and property matters (called continuing power of attorney) or welfare matters (welfare power of attorney). The document must be registered with the Office of the Public Guardian before it can be used.
Someone can only make a PoA when they have the capacity to understand what it means to grant these powers.
Someone granted a continuing PoA can use it as soon as it is registered, unless the PoA says otherwise. A welfare PoA can only be used for decisions the person has lost the capacity to make him or herself. Some PoAs say that the attorney can only use their powers after a specific event, such as an assessment by a doctor to say the person has lost capacity.
What is the difference between Power of Attorney and Guardianship?
The difference is that a power of attorney can only be granted to an individual who can understand and explain their wishes, whereas guardianship applies when a person does not have capacity to make decisions on their own behalf.
A welfare guardian can be an individual, such as a relative or close friend, or the Chief Social Work Officer. The guardianship order will say which decisions and/or actions the welfare guardian can take on behalf of the person with incapacity. The guardian is appointed by the sheriff's court.
Nicola Gillespie, Argyll and Bute HSCP, Senior Manager, Mental Health and Addictions (Adult Services) explains: “When someone loses their capacity to make important decisions, it can be a difficult and overwhelming experience. That's when a guardianship comes in - someone who is appointed by the court to make welfare or financial decisions on their behalf. It's important to remember that the guardian is there to provide support and guidance during a challenging time, and to ensure that the person receives the care, support and attention they need.”
The application includes reports from health and/or social care professionals. The reports say why the person needs a guardian and whether the person asking to be a guardian is suitable.
Similarly, a financial guardian may be appointed on application to the sheriff's court. The guardian may be a relative, a lawyer or an accountant.
It's an unfortunate reality that life can be unpredictable, and there are situations where our loved ones may no longer be able to make decisions for themselves due to various reasons such as a dementia diagnosis, mental health issue, traffic accident, or an injury at work. In such times of distress, families, friends and partners often find themselves helpless, with no automatic legal rights to direct the medical welfare or financial affairs of their loved ones. This is where a court-appointed Guardian can provide a solution by stepping in to oversee their welfare. It's essential to be prepared for such unexpected situations and seek the guidance of a legal professional to ensure the best possible outcome for your loved ones.
Caroline Cherry, Argyll and Bute HSCP, Head of Adult Services-Health and Community Care said: “In the event that someone becomes incapable of making decisions regarding their healthcare and welfare, power of attorney is the only means to guarantee that a trusted friend or relative can make decisions on your behalf. It is highly recommended to acquire PoA as it can potentially prove beneficial in situations of incapacitation. PoA ensures that an appointed representative is authorised to manage the affairs of the incapacitated individual, thereby allowing for timely and efficient decision-making without any undue delay or inconvenience. Having a PoA in place can provide invaluable peace of mind.
“I would encourage all residents across Argyll and Bute to look into appointing a power of attorney. The scope of the PoA includes not only healthcare and welfare but also the management of property and financial affairs."
My Power of Attorney website has an online calculator to check if people are eligible to qualify for financial assistance or meet specific criteria towards legal expenses to get advice and assistance to have a solicitor prepare a power of attorney on their behalf. They also have a list of solicitors to search to see if there is one who can act for you locally.
Both medical professionals and solicitors are legally empowered to authorise power of attorney.
For more information about PoA visit www.mypowerofattorney.org.uk
For general advice and guidance on Guardianship contact The Office of the Public Guardian (Scotland):
phone 01324 678 300
Monday to Friday, 9am to 5pm