Information Line: 0800 999 2434 Website: compassionindying.org.uk Welfare Power of Attorney Scotland This factsheet explains what a Welfare Power of Attorney is and how to make one. It is for people living in Scotland. If you live in England, Wales or Northern Ireland, or you would like more information about planning ahead for your future care and treatment, please contact us. What is a Power of Attorney? A Power of Attorney allows you to give someone you trust the legal power to make decisions on your behalf in case you later lack capacity and are unable to make a decision for yourself. The person who makes the Power of Attorney is known as the granter and the person given the power to make decisions is known as the attorney. There are two different types of Power of Attorney. A Continuing Power of Attorney covers decisions about money and property A Welfare Power of Attorney (WPA) covers decisions about health and personal welfare. You can make both in the same document This factsheet is only about the Welfare Power of Attorney. 1
What is capacity? Capacity is the ability to make a decision for yourself. It is time and decision-specific. This means that whether or not you have capacity depends on when the decision needs to be made and what the decision is. So, you might lack capacity to make a decision on one day but be able to make that decision at a later date. This might be, for example, because you have dementia and your ability to remember information differs from one day to the next. Also, you might have capacity to make some decisions but not others. For example you might have capacity to decide what you want to eat every day but not to understand what will happen if you refuse life-sustaining treatment. You lack capacity if you cannot do one of these things: act on decisions make decisions communicate decisions understand decisions retain the memory of any decisions made The law says that people must be assumed to have capacity unless it is proven otherwise. However, if a decision needs to be made about your health or care and a healthcare professional thinks that you might lack capacity, then they will need to assess whether or not you have capacity to make that decision. Your attorney can only make decisions for you if you have lost capacity and cannot make the decision yourself. If you have capacity then you can still make your own decisions and your attorney cannot override them. 2
What decisions can my attorney make? In a Welfare Power of Attorney (WPA), you can give your attorney power to make decisions about anything to do with your health and personal welfare but you must specify these powers in your WPA. Types of powers you could specify include: what medical treatment you should or should not have where you are cared for and the type of care you receive what you eat how you dress what activities you take part in It is important to consider all of the decisions you might want your attorney to make if you lose capacity. It is very important that the powers are written in a clear and understandable way. Your attorney will not be able to make a decision on your behalf unless that type of power is clearly specified in your WPA document. It is therefore very important that the powers you want to give are specific, well explained and not open to interpretation. Who should I choose to be my attorney? In a WPA your attorney can be anyone over the age of 16, such as a partner, family member or friend. You need to trust your attorney to understand your wishes, respect your values and make the decisions that you would want. Your attorney must be able to make potentially difficult decisions on your behalf. You should discuss your wishes with anyone who you would like to act as your attorney. 3
To help you decide who to choose, you can ask yourself these questions: Do they understand my wishes? Will they respect my values? Could they stand up for what I want, even if a doctor disagrees? Can I have more than one attorney? Yes, if you want to you can have more than one attorney. There is no limit to the number of attorneys you can have. You can also choose one or several substitute attorneys who will take over if your original attorney cannot continue to act. If you have more than one attorney then you can choose how they make decisions. Your attorneys can act in one of two ways: Jointly This means that your attorneys must make decisions together and agree unanimously on all the decisions they make. This means that if you were in hospital and a decision needed to be made on your behalf but the doctors could only get in contact with one of your attorneys, then that one attorney would not be able to make the decision for you because all attorneys have to agree before any action can be taken. If you choose for your attorneys to act jointly it also means that if one attorney is unable to make a decision, for example because they have died, then the remaining attorneys will not be able to make decisions for you. If you have chosen any substitute attorneys, they will step in to make decisions alone. Jointly and severally or severally This means that your attorneys can make a decision together but they can also make a decision on their own. 4
This means, for example, that if you were in hospital and a decision needed to be made on your behalf but the doctors could only get in contact with one of your attorneys, then that one attorney could still make the decision for you. If you choose for your attorneys to act jointly and severally or severally it also means that if one attorney is unable to make a decision, for example because they have died, the remaining attorneys will still be able to make decisions for you. If you have chosen any substitute attorneys, they can step in to make decisions with the remaining attorneys. If you want your attorneys to act in this way, you should state that you are appointing them to act jointly and severally or severally on your WPA document. When making your WPA if you do not specify how your attorneys must act then they will have to act jointly. How do I make a Welfare Power of Attorney? There are 3 key steps to making a WPA: 1. Choose your attorney 2. Complete a written document and certificate of capacity (see below) 3. Register the WPA with the Office of the Public Guardian Scotland (OPG Scotland) A WPA must be registered with the OPG Scotland before it can be used. The OPG Scotland is part of the Scottish Courts and Tribunals Service. They manage the Power of Attorney registration process and have a register of all WPAs. 5
To make a WPA you need the following things: A written document There is no specific form for the written document. You can ask a solicitor to help draft the document or you can write your own. Template forms are available from some local stationery shops to help you to write your own document. A written document must: state the names and addresses of your attorneys state the specific powers that you want your attorneys to have state that the powers are Welfare (as opposed to Continuing for money and property) if you have chosen more than one attorney, specify how you want them to act. If you do not specify anything, the attorneys will have to act jointly. include a statement which confirms that you have considered how incapacity is to be determined be signed by you and your signature must then be witnessed by someone who then must also sign the document A certificate of capacity You must get a certificate of capacity form from the OPG Scotland. This is called the Schedule 1 certificate. It must be signed by a solicitor registered to practise law in Scotland or a UK medical doctor to confirm that: they have spoken to you immediately before the document was signed they are satisfied that you fully understand the purpose of the WPA and the power that any attorneys would have and they have no reason to believe that you are being pressurised to make the WPA Your attorney cannot be the person who signs your certificate of capacity. 6
How do I register a WPA? To register a WPA you must then complete a registration form. This form is available from the OPG Scotland. The form needs to include the full details of the granter and the attorneys. The attorneys must sign the registration form to confirm that they are willing to be attorneys. You must then send the written document, certificate of capacity, registration form and registration fee to the OPG Scotland. You can also submit the documents online using the Electronic Power of Attorney Registration system (EPOAR). How much does it cost? It costs 74 to register a WPA. Cheques must be made payable to the Scottish Courts and Tribunals Service. If you are submitting the WPA documents online using EPOAR then it is also possible to pay by credit or debit card. How can I get the WPA forms? Remember that there is no specific form for the written document. You can get the WPA registration form and certificate of capacity form in one of two ways. You can: 1. download them from their website here www.publicguardian-scotland.gov. uk/power-of-attorney/forms-publications 2. ask the OPG Scotland to send the form to you (their contact details are at the end of this factsheet) 7
Can I change my mind? Yes, while you have capacity you can change your mind at any time and cancel the WPA. If it has not been registered, you can destroy the document and should inform anybody involved in the WPA that you have done so. If you have already registered the WPA, you must contact the OPG Scotland if you want to change or cancel it. 8
How can we help? We can send you a free Advance Decision form that you can use to make an Advance Directive. It also comes with guidance notes that explain how to complete it. Alternatively, you can complete these documents online for free at www.mydecisions.org.uk. We can also support you to complete your forms over the phone. If you have any questions about Advance Directives, Welfare Powers of Attorney, planning ahead or decision making more generally then please contact our Information Line. The following Compassion in Dying factsheets may also be helpful: Advance Directives (Living Wills) Scotland. Starting the Conversation - a booklet to support you to talk to your family, friends and doctor about your wishes for the end of life. Further sources of information Office of the Public Guardian Scotland To contact the Office of the Public Guardian Scotland directly: Tel: 01324 678 300 Web: www.publicguardian-scotland.gov.uk All the forms mentioned here are available from the Office of the Public Guardian Scotland s website: www.publicguardian-scotland.gov.uk/power-of-attorney/ forms-publications 9
Every effort has been made to ensure that the information provided in this factsheet is accurate and up-to-date, but information can change over time. Compassion in Dying does not accept any liability arising from its use, and it should not be used as an alternative to legal or medical advice. You can find the latest version of this publication on our website. Compassion in Dying, 2015. All rights reserved. Except for personal use, no part of this work may be distributed, reproduced, downloaded, transmitted or stored in any form without the written permission of Compassion in Dying. Registered charity no. 1120203. A company limited by guarantee and registered in England no. 05856324. Contact our Information Line: Phone: 0800 999 2434 10am -4pm Monday -Friday Email: info@compassionindying.org.uk Address: Compassion in Dying 181 Oxford Street, London W1D 2JT Factsheet code: LPA02 Publication or last review date: May 2016 Next review due: May 2019 Version number: 4 Compassion in Dying supports people to plan ahead to ensure their wishes for treatment and care are respected. A list of references is available on request 10