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.