capacity or not?

Discussion in 'Legal and financial issues' started by Lynne06, May 7, 2014.

  1. Norfolkgirl

    Norfolkgirl Account Closed

    Jul 18, 2012
    #61 Norfolkgirl, Jun 21, 2014
    Last edited: Jun 21, 2014
    Perhaps you can shed light on how you would conduct a financial management capacity assessment? For example, would you need to be satisfied that the patient has a rough idea of what year we are currently in 2014 and what would you suggest if the answer came back as "2004"? Again the same question asked 5 minutes later but this time answer comes back as "2005". Likewise with what month we currently are in, that is June and the patient answers "November" and a short time later "winter"? Likewise asking the patient to count cash in simple bank notes of 5's and 10's and not be able to count these up correctly at any time or guessing the total which is still incorrect? What about if she is asked what her care fees cost her each week (£900 per week) when she answers £600 per month or another time declares she doesn't know/can't remember? Believes she has access to her bank account when she has no clue where her debit card is, what her pin number is, or be able to look up the telephone number of the bank (any bank!) believing that she has an account with ****** (a particular bank) when this was closed down over a year ago?

    Please MLM provide me with some insight bearing in mind the patient has been medically confirmed as having patches of brain damage, suffered strokes, mild cognitive impairment and many confirmed neurological illnesses due to terminal sticky blood syndrome and lupus since 2002 at age 60, still suffers syncopal attacks (fainting/blackouts). I could go on and on.
  2. nitram

    nitram Registered User

    Apr 6, 2011
    North Manchester

    Post 19, In context of donor signing an LPA
    "...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 ..."

    Does this >>>JUDGEMENT<<< pointed to by a hyperlink in my link in my post 11 cause you to reconsider the above?


    Essentially, the issue is whether I prefer the evidence of the certificate provider (Miss Spurgeon)
    that Mr Collis had the capacity to create the LPA to that of Dr Ananthanarayanan, the Court of
    Protection Special Visitor, who hazarded a guess that he may have lacked such capacity at the
    requisite time.

    Mental capacity is “issue-specific”. This means that the capacity required to create an LPA is not
    the same as the capacity to manage one’s property and financial affairs generally, or the capacity to
    make a will or a gift or a loan, or the capacity to decide on a certain course of medical treatment, or
    the capacity to decide whether to live in a residential care home.

    Capacity is also “time-specific”, focusing on the particular time when a decision is made or has to
    be made. The fact that, after just a few minutes, or on the following day, a person cannot recall
    having made a particular decision doesn’t automatically mean that he or she lacked the capacity to
    make that decision, or that the decision is invalid...

    Page 4
    ...In the circumstances, therefore, I am not satisfied that Mr Collis lacked the necessary understanding
    to create the LPA, and I dismiss the application....
  3. LYN T

    LYN T Registered User

    Aug 30, 2012
    Brixham Devon
    Oh thank you Nitram

    Friends who had known him 30 years spoke to Pete when I was applying for LPA as he wouldn't sign to start. They were convinced that at the time he signed he understood what it was for.

    I had been worrying about this so I'm very grateful

    Take care

    Lyn T
  4. cragmaid

    cragmaid Registered User

    Oct 18, 2010
    North East England
    I feel that one of the issues here is being ignored........If you can inform the Donor, in the correct fashion that he/she will be allowing X to take care of running the finances, when the proverbial bus knocks them down and puts them into a coma, BUT this authority would not be put into action until the doctors say that you cannot make the decisions for yourself, then this is giving informed choice.

    Signing an LPA is not registering it. Registering a LPA is not actioning it. It is simply stating that if the Donor loses capacity, his/her Attorney can take designated actions on their behalf.

    There have been many times, since Mum granted me her LPA, that she has verbally withdrawn this, always in the grip of an infection which has caused her utter confusion and a hatred of me. Now my actions as her Attorney have not been called into doubt, but if you spoke with one of her Social Workers you could have been told that Mum has capacity and she is withdrawing her grant, whereas another would have said that Mum no longer has capacity to make these decisions and we should return the LPA and ask for a court appointed Deputy instead, but the sensible proviso would be that a wait and see might be the better option until Mum has had her course of antibiotics.

    What I'm trying to say is that these cases must be treated individually, there can never be justification for one rule fits all.
  5. Jackalina

    Jackalina Registered User

    Feb 1, 2014
    That's a great piece of information for people who may be put off registering by doctor or someone who hardly knows the patient. Thank you.
  6. MLM

    MLM Registered User

    Jun 17, 2014
    Good feedback is more of a relief than purely fulfilling, though of course everyone feels proud if someone tells them you have made their life better no matter how big or small. I am extremely new to adults services though so relief certainly comes first a lot of the time!

    From a social work point of view, hastily confirming you think someone has capacity, if asked, for the purpose of a LPA for financial matters being rubber stamped is, in my view, risky. You can't usually do much about someone with bad intentions, and if someone has capacity then naturally it is for them to judge the character and intentions of the person they want to control their financial matters. The problem is if they don't have capacity and someone is acting dishonestly to mismanage that persons finances then they haven't had the opportunity to weigh it all up as they might ordinarily.

    Now I can see full well the frustrations of wanting to do what is best. Fortunately with my MIL & FIL the LPA was mentioned on the day of diagnosis. What is scarier perhaps is that their financial advisor said that Alzheimer's "isn't life threatening, is it" and not to worry about it!!! So I had to correct that and stress the importance of not only getting the LPA sorted but understanding that there will be a one that she will want to decide his care or need to manage money is joint names or his name and without LPA that makes life more difficult.

    You and your loved ones shouldn't be left in difficult financial situations because of not having LPA. LPA should be used as a fast track let's say to managing finances the way you need to without your loved one being needed to say yes, that's what I want. Without it, it gets legal but someone should still listen to you saying either a) that's what he/she said they wanted, b) I think this is in her/his best interests or hopefully c) both of those things. Unfortunately once it gets legal everything comes down to best interests and that's when people like me do what I do and weigh up the risk of someone starting to wander at night with the fact they have never done it before and suggesting it wouldn't be proportionate to do x but we should see how y goes. That's scary for us as family members because we are scared of the worst case scenario by taking those chances. I'm scared by it too!

    I do know that what I am saying can have consequences because people change. That is also why it is extremely important to keep communicating. I would never leave someone in our situation feeling ignored and the key is to explain and explain again if necessary. If it isn't working then we need to go back to the drawing board. Please all make sure you ask for carers assessments as well or a joint assessment if your loved one needs theirs too or a review. Make sure your own needs are taken into account formally. I have seen people not want their own health taken into account but a breakdown in your health is as much a crisis for your loved one as anything else.

    Also, with telecare if you are in a situation where you may have to pay for it consider asking if you could try before you buy. It may be expensive to have some of the equipment on offer but if you have been able to see it works or not then you may find that a great reassurance. I was talking to the telecare providers for my local authority just before I went on maternity leave about cost and we agreed some of it was expensive. Although not helpful now, equipment should hopefully get cheaper in the future as demand is rising for affordable solutions to keep people at home if safe to do so.
  7. MLM

    MLM Registered User

    Jun 17, 2014
    Someone deciding whether someone has capacity should weigh up all the information that they can possibly get on a person.

    I had a client who didn't have dementia. She needed care but wouldn't accept it from anyone but her daughter despite her daughter not being available most of the day/night due to work. She didn't lack capacity, she was just a proud and private woman. Direct payments are useful in that scenario because people often feel comfortable choosing their own care worker and to take their time over choosing if needs be.

    Mental capacity assessments aren't straightforward but they shouldn't be taken lightly. It is a huge thing to say someone doesn't have the capacity to make decisions about their life any more.
  8. MLM

    MLM Registered User

    Jun 17, 2014
    As for the question about managing finances, someone shouldn't be deemed to lack capacity about financial issues because of the inability to manage notes in their hands. I would be questioning someone's capacity if, for example, we had a discussion where a person said they wanted to downsize to a bungalow therefore sell their house and then the next session couldn't recall saying that and couldn't recall why they said it because they definitely don't want to live in a bungalow. I can't think of another example right now but this would be an example of how although preferences can change over time, because the person has forgotten having the preference of moving into a bungalow and selling their house it could mean they could make a huge life changing decision (selling the house) and then after signing it away be extremely distressed because that was not what they really wanted. Of course in context of the person face to face you may judge that the person was more "themselves" on the day of mentioning the bungalow and not so much themselves on the day they have forgotten that conversation. That's why you need to know the person as well as you can as a professional. Without knowing a person it is difficult to make such judgements.

    It all needs to be weighed up though. I would never just make someone feel like I wasn't interested in their view of their loved one, but if I had to go against what they were saying then I would explain why and give them the opportunity to "appeal" so to speak. It isn't about working against people, or even for people, but with people. And you can't really do that if you aren't willing to communicate these things and be open about decisions.
  9. MLM

    MLM Registered User

    Jun 17, 2014
    I agree with what cragmaid says about different views of different social workers as well. If there is any doubt then people need to really get together and agree on the next step because you can't just leave someone in limbo.
  10. Rettaere

    Rettaere Registered User

    Sep 30, 2014

    I have had same trouble over getting my aunt assessed.doctors have charged hundreds and not assessed as she hadn't been fully diagnosed which came 2 days later.Its a vicious circle as ss and CH said she lacked capacity.It is like a battlefield when all you want to do is help care for your family and be able to step in and discuss health matters.Hopefully you are sorted now,I'm still waiting x
  11. sarahvp

    sarahvp Registered User

    Oct 22, 2014
    Can I just say as a newbie searching through various topics that this advice has just helped me put things back into perspective. I am just starting the process of POA which my Mum may, may not agree to do. It reminds me that she still has the right to make decisions, even if I think they are wrong and that there is only so much I can do to help and advise without it being seen as controlling or interfering. Many thanks.:)
  12. Pickles53

    Pickles53 Registered User

    Feb 25, 2014
    Radcliffe on Trent
  13. abadam

    abadam Registered User

    May 28, 2013
    Too little too late

    Going through capacity considerations and have been experiencing the ramifications,it's a mess.My prevailing thought is that people really need to sort out EPAs as a necessity.
    My father signed up to various legal documents when his capacity was very ifffy.He had not summoned a solicitor and he had not instructed him.
    Prevailing on people to perform actions when only false hope or other blinding emotions prevents clarity,just confuses the rancour and pain
    Hindsight is wonderful,but I think if a person does not summon and instruct a solicitor[by going to their office for instance]about everything legal,then it's about closing the door after the horse has bolted.
    It becomes bluff and twaddle and creates a lot of room for dubious behaviour[I'm tempted to say we dont know how much we love or hate our parents until they lose control,either through death or illness].After that it's pure luck,part of that luck being having access to competent caring people[who'll stand up and be counted].
  14. Norfolkgirl

    Norfolkgirl Account Closed

    Jul 18, 2012
    Hear hear! we are all assuming that these legal forms and actions to implement them are contemplated by trusted people but in today's culture there are more opportunities for the not so trusted to exploit the loopholes and the law makes it easy for them to get away with it.
  15. MLM

    MLM Registered User

    Jun 17, 2014
    This is an old discussion now really and I can't remember the ins and outs at this time of night, but we should all remember that POA isn't the be all and end all. An attorney must still act in an individual's best interests even if that person doesn't have the capacity to make whatever the decision is and we should always feel able to raise concerns about anything we suspect is not in a person's "best interests" to our knowledge so that information can be considered by those who have the power to potentially override an attorney. Sometimes people think such decisions should be made in EVERYONE'S best interests but it doesn't necessarily work that way, and that's very difficult in practice because carers are understandably stressed and frustrated by such things, especially when carer support can be thin on the ground.

    Having professionals involved in decisions helps to have an objective pair of eyes look over a situation and families that are conflicting over important decisions can benefit from that. As individuals, whether that be as carers or professionals or both, we must always remember that what we think seems best in our view may not necessarily correspond with what is the best in another person's view, though both opinions may be as equally well intended. Unfortunately there are also the opinions that are less well intended, and for professionals and indeed carers, that can be a worrying thing. That's why we need to all be willing to speak up for what we think is best for an individual and discuss these things, even if that might result in uncomfortable conversations.

    Sent from my iPhone using Talking Point
  16. LYN T

    LYN T Registered User

    Aug 30, 2012
    Brixham Devon
    But what happens when 'professionals' aren't objective-when it is the professionals who have the agenda? Believe me when I say that I have experienced this with the local MHT. They wanted to move Pete to another CH where there was more room for him to 'wander'. According to them all of his violence was due to his environment. More room! What good was that? They completely ignored the fact that Pete could only take a few steps-and when he did he was always supported by a carer or myself. Even his Consultant said that he would experience more falls in another CH as the one he was in was aware of his needs.

    A meeting was called between the MHT/CH Manager/myself and CHC rep. The CH wanted to keep him where Pete was-so did I. The CHC were happy with Pete's care-only the MHT were bothered. They were blinkered. They had boxes to tick. They had no compassion. They lost their case, and weren't happy.

    A few months later they tried again to get him moved-you see those boxes still hadn't been ticked.They failed again. 'Objective pair of eyes'?. I really don't think so.

    Sent from my iPhone using Talking Point[/QUOTE]
  17. MLM

    MLM Registered User

    Jun 17, 2014
    Hi Lyn,

    You seem to be saying the professionals agenda is to reduce your husband's aggression, which I presume is something you also share with them, but the concern is that the hope for reduced aggression is being traded off with a risk of increased falls for Pete? Have I understood that correctly?

    There is always going to be difficulty in managing multiple needs and risks where the solutions don't always work in harmony very well. They're right that aggression in dementia is a display of emotion that cannot be communicated the way you or I might be able to express that any more, and perhaps they are clutching at straws with seeking a potential cause of that frustration. I suspect you know a lot more detail about the circumstances which would make it clear. For professionals, I think the biggest difficulty is balancing the interests of everyone in a situation. In residential care there are a number of people with complex, conflicting needs so whilst it may be manageable on an individual basis you have to factor in the risks caused by the other people as well. For example, an aggressive male with dementia living with a frail woman in the room next door (I don't know Pete's home's clientele so just hypothesising) causes a problem, not just for the woman who will likely be nervous around a person like Pete (which is a situation I've had to resolve myself) but it could also be distressing for Pete or a similar adult who doesn't want to be aggressive but can't necessarily communicate what he or she wants to and in the heat of a moment hurts someone, potentially hospitalising someone, and then once calm afterwards could feel the lasting distress of that event. That's not a positive way to be living, hence why sometimes the result is that the least restrictive option isn't always the best interest option.

    I'm not saying that's your situation because I don't know the ins and outs but that's just how sometimes a decision that seems to be in the professional interest (not having to manage aggression in an overstretched service provision perhaps) isn't actually being put forward for the reason it seems.

    My father-in-law has dementia and I am often in conflict with my professional self and my personal self and it is very difficult, much more difficult than being at work because the way we care for our loved ones is different to my professional caring capacity. That isn't to say I care less, but I care differently. It is hard to explain really.

    Sent from my iPhone using Talking Point
  18. MLM

    MLM Registered User

    Jun 17, 2014
    #78 MLM, May 26, 2015
    Last edited: May 26, 2015
    I think reducing risks re: falling is also less invasive to manage i.e. through walking frames, staff support, hand rails etc than aggression which could require restraint and risks to a wider number of people, all of which is very distressing in comparison.

    I personally would be more mortified if my FIL hit my MIL or myself/partner/siblings etc than if he had a fall, but again there are factors to consider in that such as frequency of these things, severity, the recovery period. It isn't easy to consider any of these things without a real insight into each individual situation, and that's why as a social worker I never read something and immediately assume something is for the best!

    Sent from my iPhone using Talking Point
  19. LYN T

    LYN T Registered User

    Aug 30, 2012
    Brixham Devon
    Well I don't share the professional's concern anymore as Pete passed away last December. I DO share other carers concerns when they are not listened to which seems to be a repeated theme on this Forum.

    After the first meeting Pete was given 4 hours 1 to 1 care by CHC every day.. Also the CH had 1 carer to every three residents. I also visited every day for 1-3 hours so he was well supervised.The Carers knew only too well what Pete's needs were-they didn't need the MHT coming into the CH and implying that the care was not good enough. He didn't need to be shunted to another home with less staff and more residents. How would that have helped anyone?

    I understand your point that aggression can be the result of a Dementia sufferer expressing emotion-but in Pete's case it was because the part of his brain that could have suppressed aggression was damaged. The was explained to me by his Consultant. I could still read his emotions by looking at his eyes-you see I KNEW him-the MHT DID NOT.

    As for having residual emotions after he attacked people-that just did not appear to happen. He would start each day as he finished the last-violent and agitated. He was even violent on the morning of the day he died.

    My point is the MHT did not take any notice of the Carers or myself-and I was hardly an uninterested party. I will NEVER forgive those people for what they put me through-I can only say thank goodness I had the support of his amazing Carers. They would have been well within his rights to show him the door. Unlike the MHT they treated Pete (and myself) as Human Beings.
  20. Lindy50

    Lindy50 Registered User

    Dec 11, 2013
    Oh Lyn, this takes me right back to last year. You and Pete had such dreadful times :(

    I think this thread highlights the enormous responsibility that 'professionals' carry, to be of help if they can. To start by listening, deeply and to the whole person, to establish whether they have anything to offer in that situation, to that particular person. To be aware that as professionals, they only get a snapshot of a situation. And above all, to try not to do harm. Because making the wrong decision, doing the wrong thing, can be so hurtful, and as you know only too well, cause lasting distress and hurt.

    It's very difficult to be in that professional role, I agree, but it's worse to be the person / people needing assistance.

    Take care Lyn. I hope your Devon plans are coming along.

    Love, Lindy xx

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