A few months ago, Professor Angela Wallace, Executive Director of Nursing and Midwifery for NHS Greater Glasgow and Clyde, once again highlighted the considerable number of patients who, despite being fit enough, cannot leave hospital.
One of the predominant reasons causing the delays is that, when a patient does not have a Power of Attorney, their loved ones may not be able to approve the care plans which would allow their discharge.
Understanding the legal barriers
If a person cannot consent to matters affecting their welfare, which includes decisions relating to care and whether they can be relocated to a care home, there can be significant legal issues. Unless there is an attorney appointed who can legally make the decisions on behalf of the adult, the only option may be to obtain a guardianship granted by a sheriff, which can be a costly and time-consuming process.
It has been over 25 years since the groundbreaking Adults with Incapacity (Scotland) Act was passed, providing a legal framework for protecting adults who lack the capacity to make decisions for themselves. Yet there are still so many individuals without a Power of Attorney in place. There are probably many reasons, often to do with people’s reluctance to countenance a situation where they lose their personal autonomy and allow someone else to take such important decisions on their behalf. Another reason is the perceived complexity and timescale for getting a Power of Attorney in place. At present, the required registration process with the Office of the Public Guardian takes over 11 months to complete. By comparison, in England, registration – including a four week statutory waiting period - is eight to 10 weeks, marking a significant difference in the delivery of an incredibly important administrative service.
In an emergency, registration can of course be expedited and should be completed within a fortnight. However, individuals need to have signed a Power of Attorney before that happens and they must have had mental capacity when they signed it. When a normal registration process takes nearly a year, it can discourage people from putting a vital safety net in place when they are still fit and able to do so. Putting off such decisions, especially if the process takes a considerable length of time, is human nature. However, inaction can be dangerous.
Legal preparedness is key
At the point that a Power of Attorney is actually needed, due to a sudden problem, accident or change in circumstances, it can often be too late because the individual’s health has deteriorated beyond the point that they can competently sign it. Professor Wallace’s comments show one of the potential effects with the strain and cost it puts on NHS services not to mention the possible distress it causes to families when loved ones cannot come home or move to a nursing home.
Granting a Power of Attorney is a vital step to ensure financial and welfare needs are best protected when individuals themselves cannot fully control matters. It should be something people do irrespective of age, especially if they have dependants. The recent Scottish Government consultation, which may lead to changes to the law in the next decade, emphasised this. A fundamental part of the current and future law is that the Adult, and their interests, are the core focus, and that it ensures there are people appointed to be in control, and importantly that they are the ones who have them.
Putting a Power of Attorney in place should be simple. The preparation and signing of one is straightforward and if the registration process were quicker, it could make the whole process a lot more appealing to individuals and reduce the impact on the health service.
How we can help
As one of Scotland’s leading independent law firms, at Thorntons we have extensive experience in safeguarding the interests of clients through Power of Attorney procedures, and are always available to answer any questions you may have, no matter how big or small. Contact Graeme or a member of the Private Client team on 03330 430150 to discuss your needs.
