What is Power of Attorney? 

A Power of Attorney, also known as a POA for short, is a formal legal document which a person can sign to grant specific powers to someone they trust to act on their behalf, and in their name. A person can only grant a POA if, at the time they grant it, they have the mental capacity to understand what it means.

The person granting the POA is known as the ‘donor’ and the person who has the power to act is known as the ‘attorney’ or ‘donee’.

Witness to a Power of Attorney 

In order for a POA to be legally binding, it must be signed by the donor in front of a witness. It is therefore likely that you may be asked to witness POA documents on behalf of patients in hospital.

There are three types of Power of Attorney:

  1. Ordinary powers of attorney (‘OPA’): used most regularly in transactional and commercial contexts such as dealing with the donor’s property and financial affairs. The authority for this will come to an end when the donor passes away or loses mental capacity. An OPA is active even when the donor retains mental capacity and does not have to be registered with the Office of the Public Guardian (‘the OPG’).  It is not commonly encountered in healthcare.
  2. Lasting powers of attorney (‘LPA’): since October 2007, lasting powers of attorney replaced enduring powers of attorney (see below) and is the primary way of appointing someone to act on behalf of a person in the event of a loss of mental capacity. Lasting power of attorney is commonly used by elderly people who may appoint family members to manage their affairs on their behalf.  This is the most common POA that will be encountered in healthcare, is only active when the donor lacks capacity and must be registered with the OPG.
  3. Enduring powers of attorney (‘EPA’):  prior to being replaced by lasting powers of attorney, this was the primary way of appointing a decision maker to act on behalf on the donor in the event that they lacked capacity to make decisions.  They are, effectively, the same as an LPA and it may be that there are still valid EPAs if they were registered with the OPG prior to October 2007.

What to do if you are asked to sign a POA?

Generally, the Legal Department recommends that you do not get involved in matters regarding Power of Attorney.

However, if you are asked to witness a POA you should first be confident that:

  • The person who is granting the POA has the required mental capacity to understand what the document is and how it would be used; (NB. it is important not to wholly rely upon capacity evidence from other individuals – you must be satisfied, that at the time of your involvement, the donor has the requisite capacity. If you have any reason to doubt their capacity to make the POA, you must undertake a capacity assessment).
  • The donor knows the donee and trusts them to act on their behalf.

Capacity 

By acting as a witness, you are simply confirming that the person did sign the document. It is crucial that the donor has capacity to agree to a POA being granted.

If you are satisfied the patient has the requisite capacity and has not been unduly influenced, then you may witness the signing.

However, if you feel that the patient lacks capacity or has been unduly influenced then you should not witness a POA and immediately inform the Legal Department. 

Record

You must include an entry within the patient’s medical records that you had done so on the basis that you were satisfied that capacity to do so was present and that no undue influence had been applied.