Power of attorney: Why a woman was arrested after taking her 97-year-old mother from a care home – James MacKinnon

The pandemic has presented huge difficulties for families across the country, and sadly Covid-19 has resulted in thousands losing their lives.

There are different types of power of attorney which can be important when issues arise over the care of an elderly person (Picture: John Devlin)
There are different types of power of attorney which can be important when issues arise over the care of an elderly person (Picture: John Devlin)

In addition to those who have died, there are significant numbers who have struggled to recover fully, have had to remain in hospital for extended periods, or have become temporarily or even permanently incapacitated.

The disease has had an impact on families the length and breadth of the UK, regardless of background, wealth or geography, and it has created a situation which many might never have considered they would have to deal with – that is, how can we protect ourselves if we cannot look after our own affairs.

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This particular issue was brought into sharp focus in recent weeks with the case of a retired nurse, Ylenia Angeli, who was arrested for removing her 97-year-old mother from a care home.

Simply, Ms Angeli wanted to care for her mother herself.

The family relied on having a power of attorney (POA) and believed they had the authority to take the action they did.

However, and this is the key point – they only had a POA which covered Ms Angeli’s mother’s finances, not her health and well-being. In short, they had no legal say over her care and so the police were called to return Ms Angeli’s mother to the care home.

Although this case arose in England, the same broad principles apply in Scotland. A power of attorney is a written document that lets you give legal authority to individuals who you trust to make decisions on your behalf. It lists all of the specific individual powers you wish your attorneys to have.

In Scotland, a continuing power of attorney allows for decisions to be made about your property and financial affairs.

A welfare power of attorney allows for decisions to be made about health and welfare matters such as care provision.

In most cases, the best option may be a combined POA. A solicitor will help you draft this, ensuring your intentions are made clear. You will also have an interview with either a solicitor or a medical practitioner – essentially to assess that you fully understand what you are doing.

The consequences of not having a power of attorney in place can be serious, and the absence of these legal powers means that in times of need, the main option is for a relative or carer to apply to the court for a guardianship order. This can extremely complex, expensive and stressful for all involved.

For those that already have a power of attorney in place, it is never too early to review this and establish whether or not it is suitable, and if it requires to be changed.

This terrible public health crisis has undoubtedly highlighted a situation which has put families under great strain, especially those who have found themselves in the role of carers when they did not expect it.

Whilst we all hope that that this crisis will end at some point, none of us can predict what the future might hold.

We all have a responsibility to those who may need to care for us in future – it’s certainly worth considering how we can make their lives a bit easier.

James MacKinnon is head of private client at Aberdein Considine

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