We all live longer these days, and what a success story that is for our society. Increasing longevity however brings with it the possibility of living on through illness – for example dementia – which may mean the person cannot look after themselves.
Legally we can anticipate this happening by appointing a trusted person to make decisions for us when we can no longer make them ourselves. And what a wonderfully helpful document a power of attorney is – allowing decisions quickly to be made for the ill person thereby helping families to get over the trauma of someone losing “legal capacity”. Where there was no Power of Attorney in place a significant, expensive and very lengthy legal process would have to be gone through to have a court appoint a “guardian” to the ill person.
In our work as lawyers specialising in older people’s legal issues week after week we see the benefits to families of putting a power of attorney in place.
Then you see press stories such as the recent one in the Herald of 10th of March. Here a family member claimed his father (who had severe dementia), had been effectively “kidnapped” by his brother who was using the powers he held in the power of attorney to prevent him seeing his father. The family were clearly in dispute and the claim was the law did not allow the “excluded” brother to take steps to gain access to his father. That is not true. Attorneys must act for the benefit of the “adult” which is the term used in law for the person who has lost capacity. Consequently, to exclude someone having access to see his father is a decision which an attorney could only take if this clearly was to benefit the adult. And the excluded family member could apply to the Sheriff Court to have the attorney’s decision overturned if indeed it had been taken improperly.
Occasionally powers of attorney are misused, but there are plenty legal ways of stopping that. Unfortunately, the press do not report that powers of attorney are a huge godsend to many families dealing with illness. That doesn’t make much of a story though! Readers should not be put off taking sensible precautions for their families – just by reading lurid stories about the tiny percentage of cases which go wrong.