Organisational duty of candour: guidance

Annex E

The Relevant person: Adults with incapacity and following a death

1. In carrying out the duty of candour procedure the onus is for the health, care, or social work provider, in their role as appropriate person, to determine who should act on behalf of a relevant person who lacks capacity or who has died, taking into account any existing arrangements that are in place as regard to power of attorney or guardianship and seeking legal advice as appropriate. The following paragraphs provide information on Power Of Attorney; Guardianship and Next-of-Kin.

Power of Attorney

2. A power of attorney is a way of giving someone else permission to make decisions about your money and property as well as your health and personal welfare. It usually sets out what you would want to happen in the future if you could no longer look after your own affairs. In some circumstances you can choose for it to start immediately. As a power of attorney gives legal authority for someone else to act on your behalf, it is important to take advice from a solicitor.

The Attorney

3. A power of attorney is a written document, usually drawn up by a solicitor, which gives the name of the person – the attorney – you would like to help make decisions and take actions on your behalf. More than one person can be named. The attorney should be someone you trust, such as a family member or friend, or your solicitor. The powers the attorney would have are written down along with when he or she would begin acting for you. Attorneys have a duty to keep records of their actions. If you have only one attorney named and he or she is no longer able to act for you, a new power of attorney must be drawn up.

Types of Power of Attorney

4. A power of attorney can include decisions about your money and property. This is called a continuing power of attorney. A welfare power of attorney relates to your future health or personal welfare.

5. Different attorneys can be appointed for each type of power of attorney. A continuing power of attorney can be used to help with financial matters before you are incapable but decisions about your welfare cannot be made until you are no longer able to do so yourself.

Who Needs a Power of Attorney?

Everyone should consider asking a solicitor to prepare a power of attorney. With some people, their capacity to look after their affairs is impaired gradually, for instance, as they grow older. But sudden accidents and illnesses can happen to anyone. A doctor can assess whether or not a person is incapable.

What is the difference between a power of attorney and a guardianship?

Both fulfil the same function – allowing one person to act on behalf of another, to look after their financial and/or welfare matters. The difference is that a power of attorney can only be granted from 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. A guardianship is applied for through the courts (and can take up to six months to be granted) whereas a power of attorney is drawn up by a solicitor.

A guardianship is for a fixed period of time (unless a good reason can be shown why it should be longer) whereas a power of attorney stays in force unless revoked by the person granting the power of attorney or death.

Next-of-Kin

The term next-of-kin has no legal definition in Scotland. An individual can nominate any other individual as their next-of-kin. There is no requirement for the nominated person to be a blood relative or spouse, although it is normally the case. Someone who has no close family (or who has little or no contact with their surviving family members) may decide to list someone outside their family as their next of kin, for instance a friend or a neighbour. The nominated person must agree to the nomination, otherwise it is invalid. The status of next-of-kin confers no legal rights and has no special responsibilities.

In the context of healthcare, patients are often asked to nominate a next-of-kin when registering with their general practitioner, or alternatively on admission to hospital. Hospitals will then notify the next-of-kin that the patient has been admitted or if there is any change in their condition. If the patient is unconscious or otherwise unable to state their next-of-kin, hospitals will usually list their nearest relative, though there are no specific rules. Doctors should attempt to seek the views of the next-of-kin when considering decision making for unconscious patients or those who lack capacity.