It is hard to imagine that there may come a time when we are unable to make decisions in relation to our own health and welfare and may, as a result, require full time care. One way of approaching this is to follow in the footsteps of one adventurous 86 year old, who has spent the last 10 years, evading residential care, by circumnavigating the globe on a cruise ship. For those of us who are slightly more practical, a better option would be to grant a welfare power of attorney, whilst we are able, appointing a trusted individual or individuals to make these decisions on our behalf.

However, in situations where a person (1) lacks capacity and (2) does not agree with their care arrangements, we have seen an emerging practice in Scotland for the relevant public authority to insist that an application to the local Sheriff Court be made for the appointment of a welfare guardian despite a valid welfare power of attorney being in place. Such a practice is driven by concerns that this would, otherwise, amount to a deprivation of that person’s liberty.

The term “deprivation of liberty” may not have a formal legal definition but its connotation immediately sparks an emotive response. The right to liberty is one of our fundamental human rights, which should be legally safeguarded and protected. However, there are some circumstances when deprivation of liberty, particularly in the context of care, may be for the benefit and safety of the individual, provided that there are appropriate protections in place. The care you receive can only deprive you of your liberty if you have not consented to it but the position becomes more complicated if you lack the mental capacity to consent.

A welfare power of attorney and a welfare guardianship both essentially serve the same purpose as they are both means by which a person is appointed to act on another person’s behalf. The distinction is that a power of attorney can only be granted by an individual who can understand and explain their wishes whereas a guardianship applies when a person does not have capacity to make decisions on their own behalf.

The issue here, however, is not necessarily the legal distinction between the two but more that the current legislation in this area is in need of reform. This was highlighted by the Scottish Law Commission’s 2014 report on Adults with Incapacity. The report focused on this question of deprivation of liberty and how it relates to the current legislative framework and concluded that adults with incapacity in Scotland are currently being confined to hospital wards and residential care facilities without any underlying process which is contrary to Article 5 (the Right to Liberty) of the European Convention on Human Rights.

Since this report many relevant public authorities have reviewed their practices and are now reacting cautiously.

Compared to a power of attorney, a guardianship is undoubtedly a much more involved process that requires to be applied for through the Court but can in some areas in Scotland take up to six months to a year to be granted. A power of attorney, on the other hand, involves a deed being drawn up, typically by a solicitor, which stays in force unless revoked by the person granting the power of attorney or on death. A guardianship is customarily granted for a fixed period by the Court, unless sufficient cause can be shown for such an order to be granted indefinitely.

Owing to this more formal procedure, a guardianship may be viewed by the public authorities as being more appropriate in the foregoing situation. However, it is arguably more restrictive on the person to insist on a cumbersome and lengthy guardianship process when the individual has a valid welfare power of attorney in place, which appoints a person that they specifically named and trusted to make these decisions at a time when they were able to make such decisions personally. The average timescale for a guardianship to be granted is also, itself, unsatisfactory (and preferably avoided) as it is likely to leave the person in a state of limbo for a significant period of time regarding their care arrangements.

In the absence of any clear guidance on this point at this time, it is hoped that a carefully drafted power of attorney, which clearly sets out a person’s wishes in this respect and incorporates appropriate safeguards, should negate this growing trend for welfare guardianships.  

This can be facilitated by incorporating wording into a welfare power of attorney deed, if this is your wish, specifically authorising your welfare attorney to make decisions in relation to your care even if this would amount to a deprivation of your liberty. Safeguarding measures should, of course, be incorporated so that there is a right to contest, as well as periodically review, any exercise of such power. By law all welfare power of attorney deeds must also include a declaration that confirms that you have considered how your incapacity is to be determined. To go one step further, it would be better practice to set out expressly in the power of attorney deed how your incapacity is to be determined and who should determine it. This offers some further reassurance that your incapacity will be fully and formally considered before the document is invoked by your attorney.

As this remains a very grey area of the law, and is yet to be tested by the Scottish Courts, it is difficult to say with any certainty whether such a deed will be accepted by the relevant public authorities and Court. It does, however, firmly demonstrate that this has been considered by you at the time of granting the deed and allows a clear procedure for any such action to be reviewed and challenged at a later date.

There are hopefully legislative changes on the horizon which will reform and bring much needed clarity to this area of the law. Until that time, you should ensure that your welfare power of attorney clearly expresses your wishes in this respect and that you select a welfare attorney who you trust will act in accordance with them. Or you can book a cruise… (Please note that this option is not recommended, especially for those with sea sickness).