Capacity refers to whether or not someone is able to make important decisions for themselves. In order to grant POA to a relative or friend someone must have capacity, i.e. they must be mentally capable of making that decision and understand what it means.
We should all be encouraged to consider appointing a POA to act on our behalf if we were to become incapacitated through illness or injury. POA can be for finance or welfare or both.
Financial POA means that you give another person power to act on your behalf regarding finance. This means they can access your money, purchase things on your behalf and pay for bills and services. This type of POA can come into effect when the person still has capacity but would just like someone else to manage their affairs.
Welfare POA means that you appoint someone to act on your behalf regarding welfare. This covers health care and decisions regarding treatment, where someone lives and how they are cared for day to day. It is important to realise that this POA only comes into effect when someone no longer has capacity. The POA is put in place when someone has capacity but is then enacted when that person loses capacity, e.g. develops dementia. The decision regarding lack of capacity is made by a solicitor or doctor.
If you have POA for a relative who still has capacity, you do not have an automatic right to speak to medical staff, have access to medical information or make decisions about your relative without their consent. This can only happen if it is deemed they no longer have capacity and then that Welfare POA will come into effect.
Relatives will often make appointments to discuss someone stating that they have POA but this is not always the case. We still need the consent of the patient to discuss confidential medical information as long as they retain capacity. Please don’t be offended if medical staff won’t discuss your relative’s medical information – we need consent.
Guardianship is a process by which guardians can be appointed for welfare or finance where someone has not made provision for POA before becoming incapacitated or where they have never had capacity, e.g. learning difficulties. This process goes through the Sheriff Court and can be lengthy. It is much better to make provision for POA when you are capable of doing so and also making your wishes known to your loved ones regarding what sort of care you would want if critically ill.