Now we have an understanding of what capacity is and why it is important to establish power of attorney. (Bear in mind here we are taking UK law as an example so you will need to check how the law applies in your area).

So, what happens when an individual loses capacity before they have consented to a power of attorney acting on their behalf?

Or what happens when the powers granted no longer meet their needs?

For example, it may be that there are financial “powers” in place, but not welfare. Financial powers can be formalised following an incapacity assessment. But welfare powers cannot because no previous provision was made.

In both cases we need to apply for Guardianship or Intervention orders to protect the individual.
The focus of this article is to explore these terms in more detail. Here I will include a brief outline of:

• Guardianship and Intervention orders.
• The “powers” which can be granted under guardianship.
• What guardianship means for the individuals involved.
• The carer’s role in guardianship.

What are Guardianship and intervention orders?

Guardianship and intervention orders provide legal authority for someone to make decisions and act on behalf of a person with impaired capacity in order to safeguard and promote their interests.
Guardianship orders grant specific “powers” over the long term.
Intervention orders grant similar authority as a “one off” decision or action. For example, selling their home, or moving into care.

The application for both Guardianship and Intervention orders must:

• Be very specific about the powers being requested.
• Be the least restrictive to the individual’s freedom.
• Show there is no alternative option to safeguard the individual.
• Take account the person’s past and present wishes and feelings.
• Take account of

The application for Guardianship is a very long, stressful and costly one compared to power of attorney. The law has to ensure that the nominated guardian(s) will act in the person’s best interest. Unlike power of attorney, there may be no evidence to support that the person would have chosen these individual(s) to be their guardian(s) in the first place!

In the meantime, the welfare of the individual in question hangs in the balance as there is no legal appointee to act on his or her behalf.
We would do well to actively encourage everyone to appoint a power of attorney irrespective of age. As we have seen (link) it is not only the frail or the elderly who may suddenly find themselves in need.

What powers can be granted?

As with power of attorney applications, guardianship and intervention orders are assessed and granted according to the needs of the individual. So it is not a blanket “one size fits all” approach. It is tailored to meet the needs of the individual while enabling them to continue to be as actively involved as possible.
So the guardianship application must be explicit in terms of the ‘powers’ being requested. The “powers” granted under an order may relate to the person’s money, property, personal welfare and health.

If approved, these “powers” will be specified on the guardianship order. Only “powers” that are needed now and in the foreseeable future will be considered because as we have seen (link):
Capacity is decision specific.
Capacity can change over time.

Guardianship orders are usually granted for a fixed period. The guardian must apply before the order is due to expire, but this is a less complicated process than the initial one.
Intervention orders usually expire when the specific task has been completed. The guardian is required to provide regular progress reports until this point has been reached.
It is worthy to make note of health and welfare “powers” here. GP’s have a duty to consult with the guardian(s) and power of attorney before making any medical decisions relating to the individuals health, including the decision not to resuscitate.

Roles and responsibilities of the guardian

As we saw with power of attorney (link), this role may be taken on by a relative, or close friend. Sometimes the reason that no power of attorney has been arranged is because the person has no-one. Guardianship duties then become the responsibility of the local authorities who may nominate themselves or another appropriate person.
In either case, the potential guardian has the arduous task of preparing reports, and attending interviews to determine their suitability. They also have to prepare financial and welfare management plans according to the “powers” they are requesting. Finally, they are required to attend a court hearing to support their application.
Once appointed, the guardian is closely supervised, to ensure they are fulfilling their role and have to evidence all they do through meticulous record keeping.
Guardians, then, have a very onerous task. Add to this the emotional aspects of making sure their loved ones needs are met and you have a picture of how difficult their role must be.

A methodical approach to guardianship in the care home

As with power of attorney, (link) we have a duty of care to be familiar with guardianship “powers”. We need to know who the guardian(s) are and how they wish us to act on their behalf. There are many similarities with power of attorney which have already been covered (link). But in each case, a methodical approach is called to ensure that we are meeting the needs of the resident and following the “powers” to the letter.

The approach outlined below, can be applied in both cases:

1. Arrange a meeting to review the powers as soon as the guardianship order has been granted. Attendees should ideally include a minute taker; the guardians and resident; the home manager and representative care staff, the GP and a representative from the local authority/social services.
2. Prepare a checklist to cover all eventualities. (link)
3. Access copies of the “powers” with the guardians consent.
4. Discuss all the “powers” granted and note them in the checklist.
5. Clarify, discuss and note when the guardian(s) wish to be consulted and when they are happy for action to be taken on their behalf. Using a “what if” approach (link) is a useful way to specify desired outcomes and build trust.
6. Use a template (link) to create financial and/or welfare careplans from what has been agreed during the meeting.
7. Review the minutes, careplan and checklist at the end of the meeting to ensure mutual agreement on the way
forward. Meticulous attention and accuracy with minute taking is vital here.
8. Ask all attendees to sign the minutes and careplan.
9. Retain copies of the Guardianship order, minutes, careplan and checklist in the resident’s carefile.
10. Arrange a date with the guardian(s) to review the finalised careplans and ensure that they sign them to evidence their participation and agreement.

Lastly, remember, we are working on behalf of our resident through their guardian. So our duty of care is as much to that guardian as it is to our resident. A Guardian, like a power of attorney is accountable for what happens to the resident. That accountability includes what we do as much as what they do. So if we get it wrong, they are duty bound to investigate.
Worth bearing in mind the next time we are tempted label a relative as “difficult or hard to please”.

Now we have covered the issues surrounding “Mental Capacity” (link), let’s have a look at what that means for our residents in the care home setting (if you haven’t read the Mental Capacity article, I’d recommend reading that first!)
If an individual has full capacity, they retain the ability to make their own choices and decisions about how they live their live. But what actually happens if they no longer have that capacity?
In such cases, when an incapacity assessment has shown that an individual is no longer able to make some decisions for themselves, someone has to be appointed to do that on their behalf.
Or in other words, someone has to be granted Power of Attorney for the incapacitated individual.

What Power of Attorney is not

Power of Attorney is not a panacea. As discussed in this article [link to mental capacity article], an incapacity assessment identifies specific decisions that the individual is no longer able to make. But it by no means suggests that they are unable to make any decisions or choices at all (see here for more information on this)
So the incapacitated individual must have the opportunity to make all of the decisions he or she is capable of, and at the same time, the decision that person with Power of Attorney makes are unbiased and fair.
As primary carers in the care home setting, we have a moral, legal, and ethical duty to ensure that these things happen.
What exactly is Power of Attorney?

The law is very clear on the issue of Power of Attorney but the specifics vary depending on which part of the world you live in. To give an example of how it can work, we will focus on Scottish law.
Scottish Law demands the legal appointment of an attorney(s) to act on the person’s behalf, known as Power of Attorney (Power of Attorney). This is a written document that gives someone else legal authority to make decisions on the individual’s behalf. Anyone over 16 make a Power of Attorney and it lasts indefinitely unless they decide to terminate it. Power of Attorney documents are usually (though not always) drawn up by solicitors. They must be registered with “The Office of the Public Guardian” before coming in to effect.

By Scottish law, there are three main types:

Continuing Power of Attorney

This grants the attorney powers to deal with the personal finances, and properties of the named individual. These powers can be used by the attorney immediately after the Power of Attorney document has been registered. In some cases, the powers may only be granted in the event of the individual’s incapacity. In depends on the choice of the individual.

Welfare Power of Attorney

This grants powers to make decisions around health or personal welfare matters. However, the main difference with welfare powers is that they can only be acted on when the individual no longer has capacity to make decisions on matters to which the powers apply.

Combined Power of Attorney

As the name suggests, this gives both continuing and welfare powers.

What does it mean for us?

The majority of registered Power of Attorneys are a combination of continuing and welfare powers. However, it is the individual’s choice as to the type of Power of Attorney they wish to grant.

Though these documents have a generalised format, the content can vary widely and depends on the individual’s circumstances and personal wishes. Powers can be appointed to one person, or several. If desired, the individual can specify who makes the decisions about the different areas the document covers.

For example, a mother can appoint her son and daughter as joint Power of Attorney but specify that her daughter will be responsible for choosing her clothes, make up and toiletries and her son for choosing where she lives.

Unfortunately, it is not uncommon for an individual to appoint a Continuing Power of Attorney without adding in the welfare aspect.

Why? Well, getting our finances in order is often the first thing we do when we plan ahead for our future. We think of our retirement and recognise that there may come a time when we will need support from those we trust to help keep our finances in order.
Few of us consider the consequences of our no longer being able to make decisions about where we live or how we dress.

Often, relatives believe that they have combined Power of Attorney when in fact, they have only been appointed Continuing Power of Attorney. (link)

You can see then, why it is important to review Power of Attorney documents for each individual. Best practice dictates that we retain a copy of the powers in the resident’s careplan.
This way, everyone involved in their care can become familiar with who is responsible for what. Only then can we act accordingly and ensure that we are honouring the wishes of every resident in our care.
In short, it is the only way that we can adequately meet our duty of care for those for whom we are responsible.

It is worth remembering, though that the appointment of both Power of Attorney and guardianship (link) carries a high degree of legal responsibilities. It involves the submission of documentary evidence to the Office of Public Guardianship on a regular basis, reviews by social services, and much, much more to evidence that the persons best interest is always being put first and their needs are being met.

So the next time there is a temptation to class a relative as ”difficult” remember that as well as dealing with the emotional side of their loved one living in a permanent care setting, they are also under strict legal obligations to get it right.
This is no easy task by any standard and we would all do well to respect that.

We make choices every day. How we live our lives, fulfil our desires and make plans for the future. We rarely consider ourselves fortunate to be able to do so. In fact, it is a gift we take very much for granted.

What is Mental Capacity?

Through illness or disability, many adults find difficulty with processing the information needed to make a particular decision. So their ability to make their own choices is affected.

This ability is what we mean by “Mental Capacity”.

Mental health problems, learning disability, dementia, stroke, brain injury and the natural aging process can all affect our decision-making skills.
When you think about it, this accounts for the majority of people living in care homes today.

Judging Mental Capacity

Capacity should not be assessed solely on a specific medical diagnosis. Nor should it be assumed from a decision or behaviour considered to be eccentric, unusual or even ill-advised.

In common law, we all, as adults, have a right to make our own decisions, “good or bad”.That is precisely how capacity was assessed in the not so distant past, however – an all other nothing phenomenon! A person either had full capacity to make decisions, or none at all. In the latter case, those individuals had few rights with limited legal recourse.

Thankfully, the picture today is a much brighter one with the introduction of various laws and acts designed to protect those vulnerable adults.(link – link).
These laws vary on both a global and regional level and are too numerous to incorporate here. However, we will refer to various aspects of UK law to provide some illustrations of how it can protect us.

But remember, some local research will be necessary to see how it applies in your own area before you proceed.

What is incapacity?
When our ability to make our own decisions is compromised, we are said to have incapacity. This concept is rarely a black and white issue.

Under UK law, an individual’s capacity is judged according to the specific decision to be made. So a person may have sufficient capacity to make simple decisions but not more complicated ones.

However, a person’s capacity can vary from day to day and even at different times of the day.
Consider your own decision making processes for example. When you are tired, hungry, stressed even simple choices can seem too much to cope with at the time, can’t it?

Well, it is exactly the same for our residents. But they have other illnesses or disabilities added on which makes it even more difficult for them.

Capacity can also vary with time. For example a person with an acquired brain injury may have little or no capacity immediately after the incident, but regain that capacity during the recovery process. Conversely, a person diagnosed with dementia may maintain their full capacity in the early stages of the disease, but find that their capacity decreases over time as the disease advances.

However, I am sure that many of us have experienced the scenario where a resident in the advanced stages of dementia has a moment of absolute clarity. They give a very clear and appropriate response which leaves us speechless and stunned! But we are left in no doubt about what they do or do not want at that particular moment.

It is simply the nature of the disease, which can be fluid and ever changing. Sadly, it is also the reason why the person living with dementia is often poorly understood and/or misjudged as “faking it”. But let’s leave that thought for another day.

Incapacity, then does not mean that a person is unable to make any decisions at all. They may for example lack the capacity to manage their money but retain the ability to make healthcare decisions.

Even when a person has been assessed with incapacity to make a specific decision, we should still involve them in the decision making process, and seek their opinion. In fact, we are duty bound to actively help them to express their views as far as possible.

Incapacity and the law

Let‘s take a brief look at how the law works in Scotland but please remember to check how it applies in your own area.

The Adults With Incapacity (Scotland) Act 2000 applies to all individuals aged 16 years or over. This law states that an adult lacks legal capacity to make a particular decision when there is evidence that he or she is unable to:
• understand information given to them to make a particular decision
• retain that information long enough to be able to make the decision
• use or weigh up the information to make the decision
• communicate their decision

The Act applies to all sorts of decision such as:
• major decisions such as decisions about personal finance, social care or medical treatment
• everyday decisions such as decisions about what to wear or eat

They cover a range of options to help people over the age of 16 and allow others to make decisions on their behalf. The laws are there to protect all adult individuals who are vulnerable through incapacity. The Acts can also be used by anyone who wants to plan ahead for a future time when they might no longer be able to make decisions for themselves (Link – Link).

Who can assess incapacity?
In reality, and surprising as it may seem, there are no universally standardised tests to measure capacity. Assessment very much depends on the specific circumstances of the individual and the decision being made.

Capacity can be assessed by a variety people such as carers, GPs, neuropsychologists and social workers, depending on the type of decision to be made. Carers and relatives may be able to gauge a person’s capacity to decide when they get up in the morning whereas a GP can judge their capacity relating to medical treatments and so on.

As we have seen, capacity is by no means a straightforward issue. It needs to be constantly reassessed because there may be recovery or deterioration. We need to continue to involve the resident as much as possible in decision making, with a focus on what will serve the resident’s best interest while restricting their freedom as little as possible.