Granting welfare power of attorney essential
Legislative changes may reform this area of the law, says Caroline Pringle
It is hard to imagine that there may come a time when we are unable to make decisions in relation to our own health and welfare and may, as a result, require full-time care.
This makes it all the more important that we grant a welfare power of attorney, whilst we are able, appointing a trusted individual or individuals to make these decisions on our behalf should we no longer be able to do so.
However, in situations where a person (1) lacks capacity and (2) does not agree with their care arrangements, we have seen an emerging practice for the relevant public authority to insist that an application be made for the appointment of a welfare guardian despite a valid welfare power of attorney being in place. This is in view of concerns that this would, otherwise, amount to a deprivation of that person’s liberty. This practice appears to follow the Scottish Law Commission’s 2014 report on Adults with Incapacity, which focused on this question of deprivation of liberty and how it relates to the current legislative framework. The report concluded that adults with incapacity in Scotland are currently being confined to hospital wards and residential care facilities without any underlying process which is contrary to Article 5 (the Right to Liberty) of the European Convention on Human Rights. As a result of this, many relevant public authorities have reviewed their practices and are now, as we have seen, reacting cautiously.
What is not entirely clear is why a distinction has been made between a welfare power of attorney and a welfare guardianship as they are both means by which a person is appointed to act on another person’s behalf. A power of attorney can only be granted by an individual who can understand and explain their wishes, whereas a guardianship applies when a person does not have capacity to make decisions on their own behalf.
With that said, it is arguably more restrictive to insist on a cumbersome and lengthy guardianship process when the individual has a valid welfare power of attorney in place, which appoints a person that they have personally selected to make health and care decisions on their behalf in the event that they are unable. The current timescale for a guardianship is also unsatisfactory, in this situation, as it is likely to leave the person in a state of limbo for a significant period of time regarding their care arrangements.
In the absence of any clear guidance on this point at this time, it is, however, hoped that a carefully drafted power of attorney, which specifically addresses deprivation of liberty and incorporates appropriate additional safeguards, should be able to negate this growing trend for welfare guardianships.
This can be facilitated by incorporating wording into a welfare power of attorney deed, if this is your wish, specifically authorising your welfare attorney to make decisions in relation to your care even if this would amount to a deprivation of your liberty. Safeguarding measures should, of course, be incorporated so that there is a right to contest, as well as periodically review, any exercise of such power. As this remains a grey area of the law, and is yet to be tested by the Scottish Courts, it is difficult to say with certainty whether such a deed will be accepted by the relevant public authorities and Court. It does, however, demonstrate that this has been considered and provides a clear procedure for any such action to be reviewed and challenged at a later date.
There are hopefully legislative changes on the horizon which will reform and bring much needed clarity to this area of the law. Until that time, you should ensure that your welfare power of attorney clearly expresses your wishes in this respect and that you select a welfare attorney who you trust will act in accordance with them. Caroline Pringle is an Associate with Murray Beith Murray.