capacity or not?

Lynne06

Registered User
May 7, 2014
2
As her carers my siblings and I had decided that my mother lacked capacity. She was recently assessed at her local hospital & they informed us that they were unable to give my mother any diagnosis and that they would not support us in any attempt to gain lasting power of attorney over her.

She refuses steadfastly to consider a home or to have any help at home.

Based on the above information given by the hospital can we assume we were wrong to assume she lacked capacity?

Any other thoughts?
 

Jessbow

Registered User
Mar 1, 2013
2,952
West Hertfordshire
Not nessesarily.

It maybe because they don't feel that she has capacity that they wont support you , as in order to fill out the forms she needs to be deemed to have capacity.

My mother was a steadfast refuser. Sadly we had to wait until the proverbial *hit the fan* after which she went from hospital to a nursing home - she basically didn't have a choice.
 

MeganCat

Registered User
Jan 29, 2013
356
South Wales
I agree - in order to grant L P A a person has to have capacity. Once they lose it as next of kin you can't just assume it - I had to go through the guardianship (deputyship?) route to make decisions for my mum
 

Norfolkgirl

Account Closed
Jul 18, 2012
514
I agree - in order to grant L P A a person has to have capacity. Once they lose it as next of kin you can't just assume it - I had to go through the guardianship (deputyship?) route to make decisions for my mum
So why can't the assessors say she lacks capacity if the reason is that she doesn't have it sufficiently to make an LPA?
 

cragmaid

Registered User
Oct 18, 2010
7,942
North East England
The hospital does not need to be involved in the LPA process. The forms can be downloaded from the OPG website and completed by the family and signed by the Donor and witnessed by someone who has known the Donor for more that 2 years in a social capacity or as a professional ie a Solicitor. Provided the Donor understands that they are signing the form to allow a person/persons to make decisions on their behalf at the time of signing a DIY method is fine.
The reasons an LPA are used vary though...you cannot send a relative into a home, for example, but you can use the powers to seek advice regarding the need for a care home placement ( health and welfare LPA) or to amass the information regarding the funding of such a placement ( Financial and legal LPA).
Hope this helps to clarify things.
 

Lynne06

Registered User
May 7, 2014
2
Just to clarify things the hospital stated they would not support us in applying to the court of protection for deputyship over my Mothers affairs.

Thanks for all your thoughts
 

Saffie

Registered User
Mar 26, 2011
22,506
Near Southampton
In that case then it sounds as though the assessor considers your mother to have mental capacity, especially if there is no diagnosis of any sort.
Mental capacity is not the same as mental confusion. Your mother has just to understand what she is signing at the time even if she forgets it later. However, she does have to be the one to make the LPA.
 

vernumamy

Registered User
Jan 25, 2014
71
As her carers my siblings and I had decided that my mother lacked capacity. She was recently assessed at her local hospital & they informed us that they were unable to give my mother any diagnosis and that they would not support us in any attempt to gain lasting power of attorney over her.

She refuses steadfastly to consider a home or to have any help at home.

Based on the above information given by the hospital can we assume we were wrong to assume she lacked capacity?

Any other thoughts?


As I have suggested to other readers of this forum, I would like to say that your mum may still be able to do a power of attorney. ( I sometimes think hospitals and Doctors don't want to be involved for legal reasons, or lack of knowledge on the subject )

Your mum doesn't need to fill in any forms , you can fill them in for her, your mum doesn't have to make any decisions, she just needs to understand for a few minutes at the time of signing, what you are telling her about power of attorney.

Power of attorney is cheaper and quicker than deputyship, and if this option is still available to you, please include health and welfare, as well as financial, as it gives you a say about how your mother should be cared for in the future.:)
 

Saffie

Registered User
Mar 26, 2011
22,506
Near Southampton
As I have suggested to other readers of this forum, I would like to say that your mum may still be able to do a power of attorney. ( I sometimes think hospitals and Doctors don't want to be involved for legal reasons, or lack of knowledge on the subject )
I think many of us are aware , as I mentioned above, that even when appearing to show all the signs of dementia, people are able to co-operate with arranging to confer LPA to another.

The reasons for medical personnel not wishing to be involved with LPA may well be as you say but they have no reason to be involved with power of attourney anyway.
They do though with Deputyship applications as a doctor, in my case a consultant psychiatrist, has to sign a form that says that the person does not have mental capacity. Otherwise the application will not be accepted.
 

Norfolkgirl

Account Closed
Jul 18, 2012
514
As I have suggested to other readers of this forum, I would like to say that your mum may still be able to do a power of attorney. ( I sometimes think hospitals and Doctors don't want to be involved for legal reasons, or lack of knowledge on the subject )

Your mum doesn't need to fill in any forms , you can fill them in for her, your mum doesn't have to make any decisions, she just needs to understand for a few minutes at the time of signing, what you are telling her about power of attorney.

Power of attorney is cheaper and quicker than deputyship, and if this option is still available to you, please include health and welfare, as well as financial, as it gives you a say about how your mother should be cared for in the future.:)
And how does one know "what you are telling her" perhaps if she says "yes" to everything? What would you expect she says to you (other than "yes") to make you satisfied she understands?
 

nitram

Registered User
Apr 6, 2011
19,706
North Manchester
...And how does one know "what you are telling her" perhaps if she says "yes" to everything? What would you expect she says to you (other than "yes") to make you satisfied she understands?...

4.1 Assessing capacity
You should be satisfied that the donor has the mental capacity to make a power of attorney. It is important that the donor is aware of the implications of their actions and should be alerted to possibilities of exploitation.

When assessing a client's capacity to create an LPA you should refer to sections 2 and 3 of the MCA 2005 and chapters 2-4 of the Code of Practice (PDF). See also the 2010 judgment of the Senior Judge of the Court of Protection in Re Collis (unreported), 27 October 2010, Court of Protection.

For further guidance, see Assessment of Mental Capacity: a practical guide for doctors and lawyers (Law Society 2010).


Click >>>HERE<<< to view in context with hyperlinks enabled.
 

vernumamy

Registered User
Jan 25, 2014
71
And how does one know "what you are telling her" perhaps if she says "yes" to everything? What would you expect she says to you (other than "yes") to make you satisfied she understands?
It is " my " understanding that if a person has not been medically assessed as lacking capacity, and you and witnesses are happy that the person understands what is being explained to them at " that " time, then they can sign for power of attorney.

Now if somebody wants to fiddle that " understanding " that is up to them, it would not be legal, and who would know, certainly not you or I.

But I made my point, as there are people out there that are " still " capable of understanding at " that " time, and it is for the benefit of those people and their families that I say this.

We will all have a difference of opinion as witnesses, as to whether we think somebody " understands " or not, but as the hospital said they couldn't give " any " diagnosis or support in gaining power of attorney, that is why I made " my " comment.

The poster said that she and her siblings had decided that their mother lacked capacity, I was pointing out that there is a difference between " levels " of capacity and " understanding at that time ".

The poster asked for any other thought's.

I hope mine was of use to the original poster.:)
 

whitehorse

Registered User
Jan 30, 2014
39
alas I have been through all this scenario and still am stuck in limbo.

As I have suggested to other readers of this forum, I would like to say that your mum may still be able to do a power of attorney. ( I sometimes think hospitals and Doctors don't want to be involved for legal reasons, or lack of knowledge on the subject )

Your mum doesn't need to fill in any forms , you can fill them in for her, your mum doesn't have to make any decisions, she just needs to understand for a few minutes at the time of signing, what you are telling her about power of attorney.

Power of attorney is cheaper and quicker than deputyship, and if this option is still available to you, please include health and welfare, as well as financial, as it gives you a say about how your mother should be cared for in the future.:)
my mother always refused LPA. We were, however on the point of getting it as she had relented slightly, but the solicitor got the GP to do an assessment and he said she did not have capacity. I then tried COP and the same GP went to see Mum again and this time declared that she DID have capacity. since then, the GP refuses to get another opinion, so I handed the matter over to SS. they eventually got a CPN to see Mum but she is, by now, so wary of strange men who want to take her to a room and talk to her that she refused to do any tests, got angry when he mentioned LPA and she then ended the interview. This charade has been going on for 8 months now. I am at screaming pitch and very worried. I keep getting invoices from the CH and local authority but there is no money to pay the fees. What about that for a story! Mum, meanwhile, is perfectly happy in the Home. That is something at least!
 

Norfolkgirl

Account Closed
Jul 18, 2012
514
my mother always refused LPA. We were, however on the point of getting it as she had relented slightly, but the solicitor got the GP to do an assessment and he said she did not have capacity. I then tried COP and the same GP went to see Mum again and this time declared that she DID have capacity. since then, the GP refuses to get another opinion, so I handed the matter over to SS. they eventually got a CPN to see Mum but she is, by now, so wary of strange men who want to take her to a room and talk to her that she refused to do any tests, got angry when he mentioned LPA and she then ended the interview. This charade has been going on for 8 months now. I am at screaming pitch and very worried. I keep getting invoices from the CH and local authority but there is no money to pay the fees. What about that for a story! Mum, meanwhile, is perfectly happy in the Home. That is something at least!
That's the worst story I have heard in ages. I guess it is in your best interests if your mum is deemed as having capacity so that the onus is on her (not you) to pay her CH bills. Why couldn't SS get a female rather than a male assessor? How would it make any difference if there's no money to pay for CH, whether mum has capacity or not?
 

whitehorse

Registered User
Jan 30, 2014
39
mental capacity or not?

That's the worst story I have heard in ages. I guess it is in your best interests if your mum is deemed as having capacity so that the onus is on her (not you) to pay her CH bills. Why couldn't SS get a female rather than a male assessor? How would it make any difference if there's no money to pay for CH, whether mum has capacity or not?
indeed, SS could have got a woman to interview Mum and that might have helped. too late now, though. Mine is a very complicated story which I cannot go into fully now or you would be reading for a week!

my problem is that I need COP but cannot get an assessment. Everyone who knows Mum could testify that she does NOT have capacity but the only people who can give 'validated' assessments are strangers who come to talk to her. I cannot get the GP practice to do a second opinion or even get a psychogeriatrician to assess. SS do nothing……round and round in circles…….there will be money from the sale of her house but if I ever get to this stage it will be a miracle. I have had 18 months of this pressure and I am only just holding it together. No help from any other family member. I would not wish this on anyone, and now I am consumed with guilt as I find it hard to want to go to visit Mum. If anyone mentions LPA Mum gets stroppy tells everyone that I am stealing her money. It is hard.
 

Norfolkgirl

Account Closed
Jul 18, 2012
514
indeed, SS could have got a woman to interview Mum and that might have helped. too late now, though. Mine is a very complicated story which I cannot go into fully now or you would be reading for a week!

my problem is that I need COP but cannot get an assessment. Everyone who knows Mum could testify that she does NOT have capacity but the only people who can give 'validated' assessments are strangers who come to talk to her. I cannot get the GP practice to do a second opinion or even get a psychogeriatrician to assess. SS do nothing……round and round in circles…….there will be money from the sale of her house but if I ever get to this stage it will be a miracle. I have had 18 months of this pressure and I am only just holding it together. No help from any other family member. I would not wish this on anyone, and now I am consumed with guilt as I find it hard to want to go to visit Mum. If anyone mentions LPA Mum gets stroppy tells everyone that I am stealing her money. It is hard.
No doubt it is hard and will get harder if SS don't intervene properly. Perhaps further down the line your mum will deteriorate mentally and then be re-assessed as not having capacity in which case you would have to go down the Deputy route.

Can you try a different solicitor to assess your mum - preferably a female? Look up Solicitors for the Elderly website. Really what any assessing visitor should do is not to mention to her they are there to assess capacity for LPA but just chat generally and ease in asking subtle but relevant questions without it seeming obvious.

Is there a worry that if CH are not being paid that they can throw your mum out? Have you tried the CAB?

Apart from the above, I believe that OPG send their own people to do assessments - check out this website

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&ved=0CFwQFjAJ&url=http://www.jobsgopublic.com/vacancy_attachments/185134?source=att&ei=xemSU7YepYztBvDcgfAG&usg=AFQjCNGoN_uy2EKImjnP8qKWyAGJzDJPGQ&bvm=bv.68445247,d.ZGU.

Might be worth telling them the situation if you haven't already tried them.
 
Last edited:

Beate

Registered User
May 21, 2014
11,839
London
I looked up Solicitors for the Elderly and got a quote from one near my work. He quoted £500 + VAT for a regular will. I don't think so. I have been trying for a while now to find out who could, legally binding, confirm someone's mental capacity to make a will or an LPA. My GP won't do it. The memory service GP was iffy about it. My Social Worker doesn't know anything about it but suggest the CAB office for providing me with a list of solicitors. Shouldn't there be anyone out there doing this for free?
 

MLM

Registered User
Jun 17, 2014
130
Manchester
Mental capacity requires someone to be able to understand, use and retain information specific to the subject matter. Basically, I might be able to tell you what I do or do not want in terms of my care but with more complex things like financial issues I may not be able to comprehend and retain that information. For those of you saying that she only needs to understand for a minute or a very short period of time, that is not true and very flaky foundations for any claim that a person had capacity at the time of signing such a document. A person with capacity should be able to make their own decisions about the matter in question, even if that decision seems unwise. This may be seen in cases where someone insists they remain living in their own home even where they may be at risk, let's say of repeated falling as an example, providing they understand the consequences of repeated falls such as long term hospital stays, permanent damage, not being able to get up unassisted and the risks associated with spending lengthy amounts of time on the floor etc.

Social services will assist you with making a judgement in respect of mental capacity in relation to specific matters. They tend to do it better than a lot of doctors in my opinion, but I'm biased ;) I'm a student social worker with a law degree!



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Back 2 square 1

Registered User
Jun 18, 2014
1
Cambs
Same thing happening to me as NorfolkGirl

Hi Everyone - Just joined today and am at Wits End! Can appreciate Norfolk Girl's situation, as mine appears similar.

My 89 year old mother has been in hospital since the end of April, having broken her hip falling at a respite home, (which I'd rate at 3/10, but that's another story), having been sent into respite with a broken wrist after being in another hospital two weeks, after falling. She was living alone in sheltered flat with carers 4 times a day, since ,my dad died 6 months ago, but no help at night when she is most awake, agitated and likely to fall. The paramedics have been out numerous times this year to pick her up.

We have little written medical evidence of her mental condition, which has deteriorated greatly, but at one stage an assessor wrote "impression of mixed dementia". She is hallucinatory and delusional much of the time and often verbally aggressive as ward staff have seen, but she can also be clear, focussed and lucid in her interactions with professionals when interviewed! She has always been non-compliant and stubborn - she didn't go to a GP for 40 years and has always refused to get reading spectacles, so hasn't read without a magnifying glass for 50 years! Now in hospital she is refusing a scan. That's her character before dementia!

Now we are told she is a bed-blocker and needs to move into a care home full-time, 24 care, asap. We agree this will be best and have found suitable home with vacancy. However, she point blank refuses to go. Insists she wants to go home. I have also brought in a solicitor for the elderly, who explained LPA, which she refused to sign and he says she has capacity to make that decision, however unwise. I have thought about adapting my small house, which will, of course take time, but she refuses to live with me.

She has no idea about finance or care home costs, and has forgotten about her life savings. We know that she does have more than the threshold but have no access to this money. No property to sell, She will not agree to pay for any care, as she thinks everything costs 10p! She also is oblivious of the pressure we are under, telling us "not to bother about her".

We are completely stumped as to how we can help her. Social Services in hospital have not been particularly supportive, but do we insist they take over everything??! They may put her in a home miles away, if they can't find a bed and they were suggesting one with poor standards of CQC inspection. We wouldn't be able to pay it from mum's funds and they won't take over COP because she has capacity! If they send her back to her own home then she will not be safe!

Any thoughts and suggestions welcome. Thanks for reading