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Advocate and Court of Protection

Discussion in 'Legal and financial issues' started by JT.Teach, Jan 5, 2016.

  1. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire
    Dad has been in a home for dementia for about a year. He was wandering and being brought back to the family home by the police. He is 91. I have P.O.A. He has been assessed and has an annual Deprivation of Liberty in place. He has had an Advocate assigned to him, who has visited him twice and because he says he wants to leave to see his mother or someone else and gets agitated, I have been told he has a 'Human Right' to appeal the D.O.L. and has an entitlement to legal aid and a solicitor to represent him.

    Anyone else had this? I think it is a total waste of public money and has put the family in turmoil.
     
  2. min88cat

    min88cat Registered User

    Apr 6, 2010
    581
    Goodness! Not sure at all about this, but I'm sure someone else with more knowledge will be around at some point, I just didn't want to read and run!! I would have thought that in order for anything to take place, your dad would have to be assessed by an expert see whether he had the mental capacity to choose to challenge the D.O.L.

    hopefully someone else will be along soon.
     
  3. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire
    Thank you for your comment. I understand that new legislation was introduced in March 2015 and have seen info that says a member of the family can represent him even if they do not agree. If not a representative will be found by the Advocate. I have been to a solicitor who now tells me they are unable to access the legal aid so cannot help. They did comment that in reading all the paperwork it seemed unnecessary.
     
  4. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    Hi JT, This must be very worrying.

    A DoLs can be challenged by the person themselves or anyone else on their behalf. It might have been triggered by the Police involvement if your Dad was convincing enough about his capacity or where he wanted to go.:confused:

    As PoA you would normally be the appointed Representative (RPR) for the original and updated DoLs. Is this the case or has something changed? If you are the RPR then I am surprised you haven't been contacted by the LA or the advocate. Have you asked the LA or the home for a reason?

    I would also be asking the home how they allowed your Dad to go a wandering especially as a DoLs was already in place.

    :)
     
  5. angelface

    angelface Registered User

    Oct 8, 2011
    1,086
    london
    Why hss your father been assigned an advocate?

    My aunt was under a DOLs order,and I was her advocate (no other family, you see).

    Can you get the advocate changed to someone more useful.?

    Surely the very fact that a DOL is in place means your father has no capacity to make decisions,so the idea of his human rights meaning he can challenge the DOL is a nonsense I would have thought.

    I hope someone else will be able to confirm my thoughts.
     
  6. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,850
    England
    The lack of mental capacity is where the IMCA (Independent Mental Capacity Advocate) comes into it. The principle is that people should not be deprived of their liberty just because they can't fight their own corner, so to speak. The Advocate usually helps people who are assessed to lack capacity about medical treatment or where they live and have no family or friends that it would be appropriate to consult with about those decisions. However, I believe that the new Care Act gives detained people the right to access a IMCA even when they do have a Relevant Person's Representative (RPR). I would think that with POA you would be the designated RPR, and be involved in the DOL review, but perhaps not?

    The IMCA can apply to the Court of Protection to ask for a court hearing to review a DOL situation, if they believe that the evidence warrants this. The Court might decide not to grant an appeal hearing if they think it is not justified from the evidence presented.

    I can imagine situations where appeal would be appropriate, but this Advocate does not seem to be applying common sense in your Dad's case. Maybe s/he thinks that your Dad's freedom of movement is overly restricted, perhaps because he does not leave his place of residence at all? In which case I would have though the Advocate should be discussing with you and the CH staff whether escorted outings might be a good idea, rather than talking about going to court. :confused:
     
  7. angelface

    angelface Registered User

    Oct 8, 2011
    1,086
    london
    Whoops,should hsve said RPR, not advocate.
     
  8. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire

    Sorry if I rambled and was not clear, but dad roamed when he was at home. Now he is in a dementia care home which is fantastic and they are brilliant with him. He is not given the code to the door and they have tried walking up and down the road with a carer to try and lessen his anxiety. I take out for trips and visits. (I have been involved at every level with the DOLS process and the reviews. The Advocate called me to advise of her visits and I have met with her so she could explain the court process. ALL professionals agree that he would be at risk on his own, but she tells me she has to follow the procedures because he had told her he wanted to leave.
     
  9. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire


    All of that happens already. He is taken out by the home (the last visit being to the Christmas train for a ride) I take him and he can move about freely in the home including going into the garden. It seems to me it's down to her brief rather than common sense.
     
  10. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire


    I agree with you. I do have the old type of POA and maybe that makes a difference.
     
  11. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    Even though the EPA does not cover Health and Welfare I would not think it has much to do with it as you have been so closely involved in the past and are being kept informed by the advocate up till now.

    From what you have said it should all work out well for your family and I do hope that happens soon. However when someone's liberty is being denied by the State it really is important to have safeguards in place even when it obviously is a "waste of public money" and the cause of unwelcome stress.

    I do wish you all well.:)
     
  12. JT.Teach

    JT.Teach Registered User

    Aug 10, 2015
    6
    South Gloucestershire
    Thank you - I do hope this is sorted soon.
     

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