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Desperate for advice on my family's situation!

imthedaughter

Registered User
Apr 3, 2019
507
We already know its the capacity assessment by a professional, but thankyou! I will pass that onto my Dad, but we've already been through all of that which is why we're stuck in a loop :confused: Thanks again!
Oh no. To be honest we never had capacity assessed because we had it set up differently. Capacity fluctuates you see so very few people will be willing to deem someone as without capacity altogether.
 

MartinWL

Registered User
Jun 12, 2020
315
Hold on a minute! Some basics here. Capacity is decided on a decision by decision basis. A person doesn't suddenly lose capacity for every decision. There is no rule about who decides when capacity is lost. It does not have to be a doctor. The attorney can decide although it would be wise to get a second opinion. A Lasting Power of Attorney can be used whether or not the person has lost capacity, an Enduring POA can only be used when the person has lost capacity for the decision concerned.

The POA needs to be registered with the Office of the Public Guardian. Once this is done, just get on and manage her affairs. All decisions must be made in the interests of the person, not the rest of the family.

I have recently overruled my father as his attorney, causing a lot of anger, but rightly so in his interests, because he did not meet the four requirements to make the decision under the Mental Capacity Act 2005. I didn't get a doctor involved.
 

Shedrech

Volunteer Moderator
Dec 15, 2012
9,307
Yorkshire
sorry @MartinWL and @MaNaAk but it's more complicated than that .... each of your parent's LPA clearly was an open one (my term) .... however the LPA being discussed here (it's my understanding) included the restriction that it can only come into effect when the donor has been assessed as having lost capacity to manage their own affairs, hence the very real concern and difficulty of the Attorney .... not many donor's insist on this restriction (thank goodness) and those who do may not fully realise how tough it then can be for their Attorneys to step in when it's clearly necessary yet has to be proved to be so
 

Lynmax

Registered User
Nov 1, 2016
576
A Social Worker recently assessed that mum no longer had capacity, this had to be done so the Health and Welfare LPA could be used, unlike her financial one which allowed us to help with finances without a capacity assessment.

Your problem might be getting Adult Social Care to get involved, we tried at the start of lockdown but no one ever phoned us back when promised! But mum had a fall and ended up in hospital so a hospital SW got involved and started the ball rolling.
 

canary

Registered User
Feb 25, 2014
13,641
South coast
Getting someone to assess capacity seems to be an increasing problem as fewer people seem to be willing to state officially that capacity has been lost.
This is especially difficult for when deputyship is sought, or (as in this case) the donor has explicitly stipulated on the POA that it can only be used once capacity has been lost.

A couple of people on here have mentioned an Independant Social Worker and I think this may be the way to go. I have not used them myself (mums hospital SW was willing to sign to say she had lost capacity for the Court of Protection), but I have read on here about a few people who have used them and found it helpful. Someone upthread gave the link
 

MaNaAk

Registered User
Jun 19, 2016
2,746
Essex
sorry @MartinWL and @MaNaAk but it's more complicated than that .... each of your parent's LPA clearly was an open one (my term) .... however the LPA being discussed here (it's my understanding) included the restriction that it can only come into effect when the donor has been assessed as having lost capacity to manage their own affairs, hence the very real concern and difficulty of the Attorney .... not many donor's insist on this restriction (thank goodness) and those who do may not fully realise how tough it then can be for their Attorneys to step in when it's clearly necessary yet has to be proved to be so
I see. If I can think of anything else to help
I'll let you know.

MaNaAk
 

Veritas

Registered User
Jun 15, 2020
69
Alongside (and perhaps even before) getting an independent assessment of whether your grandmother retains capacity, I would be submitting a formal complaint to the hospital holding her results. You could start the low key way by getting in touch with their PALS (Patient Advice and Liaison Team) and explaining the situation and your concerns. If that doesn't generate a quick and useful response, I would then write to the Chief Executive (their website will tell you who this is) with a clear and concise statement of the problem and what needs to be done to resolve it.

Without a formal diagnosis it's very hard for anyone to move forward, and it is not reasonable for any service to treat your grandmother like this. I'm not clear if it's a specialist memory service that's done the testing so far, but I certainly know that other services are managing to assess and diagnose patients within reasonable timescales even if they are having to work differently at the moment.

The other thing I would do is contact the OPG to establish exactly what evidence is required to demonstrate lack of capacity such that the attorneys are allowed to act - and I would add this information to the letter to the Chief Executive if you are forced down that route. Throughout, I would emphasise the increasingly risky situation your grandmother is now in.

I am very sorry that you are all going through such a needlessly stressful time.
 

Bod

Registered User
Aug 30, 2013
1,335
Hi! Thanks for replying. We have copies of the POA documents! What is the memory clinic? Is this localised to GP surgeries? If this is the case, all services available through them are already aware of how they have been set up and the urgency in having her assessed, but are stating they are not making assessments at the moment. It's hard to know where to turn next... the relevant service we have been referred to under both the GP and the hospital are unable to help. But if there is an independant memory service that we are not aware of, you're right, this may be the key!
The copies of the POA, are they the original documents, with the perforated validation marks, or certified copies, or just uncertified photocopies?
If either of the first two, then the Dr's should talk to you at least to establish capacity.
The last type of copies, are worthless, and will not be accepted.
By the way,are you in the UK, as some of your language is different to what I would expect. If you are not in the Uk, then some of our overseas members, may be able to give better, more local advice.

Bod.
 

canary

Registered User
Feb 25, 2014
13,641
South coast
I think you have got the wrong end of the stick @Bod .
The problems with the POAs isnt because @Claireyeddy has got uncertified copies, but because her grandmother stipulated in her financial POA that it could only be used once she lost capacity (an unusual clause). The Court of Protection have said that a professional has to sign to say that capacity has indeed been lost before it can be used, but she is now having problems finding someone who is willing to sign.
 

Claireyeddy

Registered User
Sep 21, 2020
35
Thankyou so much!

My dad has been told this morning that even with a diagnosis, she will still need a capacity assessment for the POAs to kick in, and as pretty much all doctors are refusing to do these currently, the only way to obtain one is to pay privately. We've been told so many different things in the last 2 days, but this has now come directly from the MAS unit, so we are assuming it to be correct information.

My concern is now for other people in similar situations who don't have the funds to pay for this assessment privately. What happens to them and their families trying to do their best? Why is this whole system so messed up when we should be protecting the elderly? I'm absolutely dumbfounded!
 

Claireyeddy

Registered User
Sep 21, 2020
35
Alongside (and perhaps even before) getting an independent assessment of whether your grandmother retains capacity, I would be submitting a formal complaint to the hospital holding her results. You could start the low key way by getting in touch with their PALS (Patient Advice and Liaison Team) and explaining the situation and your concerns. If that doesn't generate a quick and useful response, I would then write to the Chief Executive (their website will tell you who this is) with a clear and concise statement of the problem and what needs to be done to resolve it.

Without a formal diagnosis it's very hard for anyone to move forward, and it is not reasonable for any service to treat your grandmother like this. I'm not clear if it's a specialist memory service that's done the testing so far, but I certainly know that other services are managing to assess and diagnose patients within reasonable timescales even if they are having to work differently at the moment.

The other thing I would do is contact the OPG to establish exactly what evidence is required to demonstrate lack of capacity such that the attorneys are allowed to act - and I would add this information to the letter to the Chief Executive if you are forced down that route. Throughout, I would emphasise the increasingly risky situation your grandmother is now in.

I am very sorry that you are all going through such a needlessly stressful time.
Thankyou so much for your message and advice! I think we will be writing a few letters of complaints. The unit that has performed the tests so far appears to be the specialist memory centre, or 'MAS' here. My dad has been on the phone with them again this morning, and they are holding strong that they are 'in a backlog' and can't allow 'queue-jumping'.

I have already suggested that he phones the OPG and our solicitor to determine what exactly they will accept, so thankyou for reinforcing this point for me! It's really stressful, particularly on my dad, as he has been unable to work for months due to the need to care for her. It's quite insane when you think about it. There is literally zero guidance (at least in this area) that the GP surgery or the unit give out to families to advise them of the process or who does what... which frankly I find bizarre!

Thanks again. Do you happen to know which services are diagnosing at the moment? Perhaps we can use this as a case in point. I find it absurd that this is something they feel is ok to put on the backburner (although I feel the same about a lot of services affected by the pandemic!)
 

MartinWL

Registered User
Jun 12, 2020
315
sorry @MartinWL and @MaNaAk but it's more complicated than that .... each of your parent's LPA clearly was an open one (my term) .... however the LPA being discussed here (it's my understanding) included the restriction that it can only come into effect when the donor has been assessed as having lost capacity to manage their own affairs, hence the very real concern and difficulty of the Attorney .... not many donor's insist on this restriction (thank goodness) and those who do may not fully realise how tough it then can be for their Attorneys to step in when it's clearly necessary yet has to be proved to be so
Agreed it is more complicated, postings here usually have to keep things simple in order to be readable and usually we don't know the fine details of the case. But it is the case that capacity is to be assessed for each decision not generically. So if the donor specifies that the LPA only applies after capacity has been lost it may be that he/she remains capable of making some decisions. For example a financial decision to buy new shoes costing £100 would be fine if the PWD has plenty of money and there are no other consequences, but if that expenditure would mean that he/she was unable to buy enough food as a result, and he/she had been unable to evaluate the pros and cons of the decision, due to dementia, then he/she would not have capacity for that decision.

You can't have a doctor's appointment for every small decision!

The four tests set out in the Act are:
1. Understand information relevant to the decision
2. Remember it for long enough
3. Weigh up the pros and cons
4. Communicate decision

In my case my father refuses to accept his diagnosis and believes he is mentally fit and well, therefore he fails the first and third tests for decisions where the diagnosis is relevant. I would not, however, try to stop him buying a new pair of trousers!

It can be really difficult, especially for big decisions and getting advice from a third party can be reassuring.
 

MartinWL

Registered User
Jun 12, 2020
315
hello @Claireyeddy

do the LPA documents state that loss of capacity has to be proved/evidenced ... or simply that they don't come onto effect until there is loss of capacity, in which case the Attorneys themselves can make that decision when they sincerely believe there is no longer capacity

if the unit have evidence that your grandmother no longer has capacity (you seem to suggest this), point out to them that withholding information from her Attorneys is effectively withholding it from her herself as you are now acting legally on her behalf .... however, since they are refusing to speak with anyone but her, it may be that actually they still consider her to have capacity
The above is good advice. You have to follow instructions in the LPA itself. If it says that the loss of capacity has to be confirmed by a professor of old-age psychiatry and signed in his own blood, then you had better find one willing! If it doesn't say that, you don't have to.
 

Claireyeddy

Registered User
Sep 21, 2020
35
sorry @MartinWL and @MaNaAk but it's more complicated than that .... each of your parent's LPA clearly was an open one (my term) .... however the LPA being discussed here (it's my understanding) included the restriction that it can only come into effect when the donor has been assessed as having lost capacity to manage their own affairs, hence the very real concern and difficulty of the Attorney .... not many donor's insist on this restriction (thank goodness) and those who do may not fully realise how tough it then can be for their Attorneys to step in when it's clearly necessary yet has to be proved to be so
Agreed it is more complicated, postings here usually have to keep things simple in order to be readable and usually we don't know the fine details of the case. But it is the case that capacity is to be assessed for each decision not generically. So if the donor specifies that the LPA only applies after capacity has been lost it may be that he/she remains capable of making some decisions. For example a financial decision to buy new shoes costing £100 would be fine if the PWD has plenty of money and there are no other consequences, but if that expenditure would mean that he/she was unable to buy enough food as a result, and he/she had been unable to evaluate the pros and cons of the decision, due to dementia, then he/she would not have capacity for that decision.

You can't have a doctor's appointment for every small decision!

The four tests set out in the Act are:
1. Understand information relevant to the decision
2. Remember it for long enough
3. Weigh up the pros and cons
4. Communicate decision

In my case my father refuses to accept his diagnosis and believes he is mentally fit and well, therefore he fails the first and third tests for decisions where the diagnosis is relevant. I would not, however, try to stop him buying a new pair of trousers!

It can be really difficult, especially for big decisions and getting advice from a third party can be reassuring.
Thankyou for all your comments, it really is helpful!

The long and short is, that her health POA has to be handed over with a capacity assessment that deems her unfit to make her own decisions. She has set up the financial one a bit differently, in that it will either be invoked in the event of the capacity assessment alongside her health one, or she can change it of her own will in the meantime. Sadly, my nan has always been very controlling and quite difficult even before her decline, and so is unlikely to allow us to take control of her own free will! It's not even that she doesn't trust the family - in fact that's half the issue, in that she ONLY trusts the three of us and so doesn't want any carers in. She's just one of those people and frankly has left us in an absolutely impossible position for the moment!

That 4 stage test is great to know, so thankyou. And it's always good to know that it isn't generic - no one has told us this before either! Sadly she is at the point that she would fail all four of those factors. And the other problem is, without the health POA, even if we had control of her finances, we couldn't get the appropriate care in without her agreement in any event!
 

Veritas

Registered User
Jun 15, 2020
69
Thankyou so much for your message and advice! I think we will be writing a few letters of complaints. The unit that has performed the tests so far appears to be the specialist memory centre, or 'MAS' here. My dad has been on the phone with them again this morning, and they are holding strong that they are 'in a backlog' and can't allow 'queue-jumping'.

I have already suggested that he phones the OPG and our solicitor to determine what exactly they will accept, so thankyou for reinforcing this point for me! It's really stressful, particularly on my dad, as he has been unable to work for months due to the need to care for her. It's quite insane when you think about it. There is literally zero guidance (at least in this area) that the GP surgery or the unit give out to families to advise them of the process or who does what... which frankly I find bizarre!

Thanks again. Do you happen to know which services are diagnosing at the moment? Perhaps we can use this as a case in point. I find it absurd that this is something they feel is ok to put on the backburner (although I feel the same about a lot of services affected by the pandemic!)
There is one quick way of cutting through this, though it is extreme, and that is for your father to contact social services and say that he is no longer able to provide the level of support he is now. There is no legal obligation on him to do anything at all for your grandmother, and if the stress overwhelms him they will have to pick up the pieces in any case. It’s also completely out of order that he is being prevented from working by your grandmother’s situation.

As for the remarks about queue jumping - I would complain now. I wouldn’t even bother to go through PALS. I don’t want to say which service diagnosed my husband during lockdown, but it is in the south of England. There are others posting on here who have relatives also diagnosed since March. The bottom line is that your grandmother is heading into crisis and to fail to respond to repeated pleas for help from her family is just heartless.

And yes, the lack of guidance and support generally offered for families is shameful. All I got was a recommendation to check out this site - which in itself is testimony to just how poor the system is for so many of us.
 

Claireyeddy

Registered User
Sep 21, 2020
35
Hold on a minute! Some basics here. Capacity is decided on a decision by decision basis. A person doesn't suddenly lose capacity for every decision. There is no rule about who decides when capacity is lost. It does not have to be a doctor. The attorney can decide although it would be wise to get a second opinion. A Lasting Power of Attorney can be used whether or not the person has lost capacity, an Enduring POA can only be used when the person has lost capacity for the decision concerned.

The POA needs to be registered with the Office of the Public Guardian. Once this is done, just get on and manage her affairs. All decisions must be made in the interests of the person, not the rest of the family.

I have recently overruled my father as his attorney, causing a lot of anger, but rightly so in his interests, because he did not meet the four requirements to make the decision under the Mental Capacity Act 2005. I didn't get a doctor involved.
There is one quick way of cutting through this, though it is extreme, and that is for your father to contact social services and say that he is no longer able to provide the level of support he is now. There is no legal obligation on him to do anything at all for your grandmother, and if the stress overwhelms him they will have to pick up the pieces in any case. It’s also completely out of order that he is being prevented from working by your grandmother’s situation.

As for the remarks about queue jumping - I would complain now. I wouldn’t even bother to go through PALS. I don’t want to say which service diagnosed my husband during lockdown, but it is in the south of England. There are others posting on here who have relatives also diagnosed since March. The bottom line is that your grandmother is heading into crisis and to fail to respond to repeated pleas for help from her family is just heartless.

And yes, the lack of guidance and support generally offered for families is shameful. All I got was a recommendation to check out this site - which in itself is testimony to just how poor the system is for so many of us.

Thankyou for all of your comments! I'm sorry I'm half replying out of posting order, they seem to be popping up at different times so for some reason I'm seeing some later than others!

I think the problem with the LPAs is that we cant actually get them 'live' with the OPG until she is deemed to have lost mental capacity - at least, this is what the health one states in the LPA itself. The financial one states something different along the lines of, alongside a capacity assessment when the health one is 'activated', or with her consent. We would then be able to make that assessment as the Attorney when decisions need to be made, but fundamentally, we cannot even do that at this point without this assessment under the Mental Health Act. Basically, she's prepared them in a similar format to a Will, they have been lodged with the OPG, but are not live and my Dad cannot act as attorney until they are. It's very frustrating!

Sorry if the info I'm providing is a bit disjointed and confusing! I'm trying to muddle my way through this as best I can, with conflicting advice from the professionals here. It has really caused a lot of issues in how my grandmother has set these LPAs up... nightmare!

My dad has today asked me to pursue this on his behalf as he is struggling to do this himself along with everything else. Obviously he will need to speak to relevant people as he is appointed attorney and not me, but for now I think the best I can do is:

1) Contact the OPG and check exactly what they need to get these LPAs 'active' so to speak, so that my Dad can act as Attorney freely.
2) Depending on what they advise, contact someone independently and get a capacity assessment sorted to lodge the LPAs with OPG
3) If all else fails, as a backup I'll book the solicitor in to come and see my grandmother in October (the next available slot) incase she is willing to consent to the financial LPA being activated as at least this would help with funding care if we can get her to agree, and then sort out the health one when I can.

Does this sound like I'm on the right track? Is there anything I've missed that I could try? I will also encourage my dad to complain although I dont think it'll help the situation. I think they will plea covid19 and send us on our way to wait!

Thanks again all x
 
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canary

Registered User
Feb 25, 2014
13,641
South coast
I think that sounds very reasonable @Claireyeddy, although TBH, I doubt thsat even a solicitor would be able to persuade your grandma to consent to the POA being activated - most people with dementia are not aware that there is something wrong with them and that the POA is needed.
Because your grandma did not go for the usual form of POA, but added those extra clauses, it makes things confusing and people think they are dealing with the ordinary POAs - hence the conflicting views IMO.

I do hope you can get them sorted out soon so that your grandma can get the care she needs.
 

Claireyeddy

Registered User
Sep 21, 2020
35
I think that sounds very reasonable @Claireyeddy, although TBH, I doubt thsat even a solicitor would be able to persuade your grandma to consent to the POA being activated - most people with dementia are not aware that there is something wrong with them and that the POA is needed.
Because your grandma did not go for the usual form of POA, but added those extra clauses, it makes things confusing and people think they are dealing with the ordinary POAs - hence the conflicting views IMO.

I do hope you can get them sorted out soon so that your grandma can get the care she needs.
Thankyou so much!

I have just sent an email to the OPG requesting the above info. I have also constructed an email to the only known independent person in this area who might be able to help us!

The only other thing that's suddenly occurred to me whilst I've been researching all of this. We have LPAs stamped by the OPG. Is it possible that we've got the wrong end of the stick, thinking we need to somehow 'activate' them with the OPG? Or is it simply that we need the assessment as supporting evidence to go alongside the LPAs as they are, to prove that we've satisfied the requirements when presenting it to banks, care providers etc?

Also, based on @MartinWL point above, have we been advised wrongly in terms of the capacity assessment? I.e. potentially she doesn't need a medical professional to do this generally, and the appointees (my dad and uncle) and make this assessment on a decision by decision basis by testing those 4 questions? If thats the case, we may have massively been overcomplicating this based on poor advice by various people!
 
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Shedrech

Volunteer Moderator
Dec 15, 2012
9,307
Yorkshire
hi @Claireyeddy

I am wary of what MartinWL states ... it appears the LPAs for his parent are the standard LPAs with no particular restrictions added .... that makes it much simpler, on the whole, as the Attorneys themselves are able to assess the state of the donor's capacity and act appropriately in good faith on their sincere understanding of each situation

however, an LPA with restrictions added makes acting on them much trickier and this seems to be the case with the LPAs your grandmother has set out

you are right that if the documents have been registered with the OPG and returned complete with the OPG stamps, then they are 'good to go' but only in accordance with any stipulations set out in each document ... hence your dad's problems, as I understand what you have told us

I think you are wise to ask the OPG for their view, as they are the ones with the responsibility of oversight

members here offer suggestions in line with our own experiences ... we are not professionals, and even if we were we cannot give professional advice on the forums here (T&Cs)

sadly there also can come a point when a person is no longer considered to have capacity, I speak from my experience with my dad ... the intermediate stages between realising something is very wrong, and receiving a diagnosis, and heartbreakingly knowing there is no capacity can be a minefield

I hope the OPG can give you the info and reassurance your dad needs