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What rights does a legal proxy have?

A legal proxy can make medical, welfare or financial decisions for an adult with incapacity. In this information we talk only about legal proxies with the power to make medical decisions.

There are different types of legal proxy.

  • Someone can appoint a welfare attorney to make decisions about their health care and treatment if they later become unable to do this on their own.
  • The court can appoint a welfare guardian to make decisions about a person’s health care and treatment on their behalf.
  • An intervention order is when a person is appointed by the court to make a one-off decision within a certain period about another person’s health care or treatment.


How do I become a legal proxy for the person I care for?

  • This depends on the type of decisions that the person you care for needs help to make.
  • Applying to become a legal proxy can be complicated and you may need to seek legal advice from a solicitor or legal advisor.
  • There are various organisations that can give you more general advice, for example,  the Office of the Public Guardian (OPG) and some carers' organisations. Contact details for the OPG and some carers’ organisations can be found here.


I am a legal proxy. What rights do I have?

  •  If you are a legal proxy for someone who cannot consent to their health care or treatment, the health professional should ask you to consent on the person’s behalf. The health professional may ask to see a copy of the power of attorney document to show that you are allowed to give consent.
  • If it is an emergency there may not be time to do this – in this situation the doctor can go ahead with treatment, but only if it is needed to save the person’s life or stop them suffering more serious harm.
  • If you are a legal proxy for someone, you may have the right to see their health records. 

A person’s health record should include the names and contact details of their carers, particularly anyone who is a legal proxy.


I am a legal proxy. Can I disagree with a decision about health care and treatment?

  • Yes. If you disagree with the health care or treatment the doctor suggests for the person you care for, you should discuss this with them.
  • You cannot demand that a particular treatment is given. But you can object to a treatment that you think should not be given.
  • If you can’t agree, the doctor should ask the Mental Welfare Commission for Scotland to find an independent doctor who will give a second opinion. 
  • If the second doctor agrees with the first doctor’s decision, the health care or treatment can be given.
  • If the second doctor does not agree with the first doctor’s decision, the health care or treatment cannot be given.
  • If you disagree with the second doctor’s opinion, you can go to the Court of Session to ask for the treatment to be stopped. You may need to get help from a solicitor if you want to do this.


I am not a legal proxy. Can I disagree with a decision about health care and treatment?

If you are unhappy about a medical decision, you can make a complaint using the NHS complaints procedure. You can find out how to do this in the Patient information section of this website.

  • The doctor should take account of your views if possible. If you disagree with the decision, you can ask for a second opinion. But the doctor can still give the treatment unless you go to court and get an order to stop it. You may need to get help from a solicitor if you want to do this.

Page last edited: 28 June 2011

What rights do I have as a carer?What rights does the person I care for have?