Going round in circles

[Rosie56]

Mum was living at home, supported by carers, until March when she suffered a sharp reduction of mobility. She was getting wobblier over several days and finally she fell and couldn't get up or walk. She was taken to hospital where she was regarded as being unable to consent to her treatment by reason of her dementia. This is recorded on a form from the social worker who is based at the hospital.

She was taken to a dementia nursing unit and kept there under DoLS (I have documentation showing that too). Following some health problems, she had a later stay in the hospital and again it was clear to everyone that she was legally incapable.

We are now trying to sell her house to pay for care but have hit a snag with the Power of Attorney. The conveyancers say it isn't valid until Mum is declared to have lost capacity by a medically qualified person. They won't accept the PoA because there hasn't been a formal assessment, or a piece of paper in her file, or whatever. It's crazy for various reasons: 1) anyone who'd met her would see immediately that she no longer has mental capacity, and 2) nobody, but nobody, is going to challenge the sale of this house, not Mum and nobody else in the family and 3) it's obvious that the social worker and the nursing staff at the home regard her as having lost capacity and that she was so regarded in hospital.

But there we are, she's been in hospital and treated as a person with advanced dementia and was then released to a dementia nursing unit - and the conveyancers are acting as if that could all happen by accident! They don't accept the documents I've shown them from the hospital social worker or the nursing unit as 'those aren't from a proper medical person'. So I'm trying to arrange an assessment. The house is ready to go for auction, people are coming forward with offers and...everything is being held up at the last minute.

This is where I start running in circles. Her GP has declined to see her, saying it should be someone from the local mental health team. The mental health team take my frantic messages and nobody gets back to me. They have even put it back on the conveyancers, saying they should have accepted the social worker's decision. The conveyancers say 'No, we won't.' Nobody wants to help at all, only to pass the burden to someone else. I fear we're going to lose the house sale and not be able to pay for the care. Can I demand that someone assesses her? What rights do we have? Could we have it done privately? I thought all the worst stress would be over once she was in the home but this is just as bad as ever.

 

[silkiest]

Can you try a different conveyancer/ solicitor? Maybe a short consultation with all your documentation to ask if it is acceptable to the new people before deciding if to set them on or not?

 

[Kevinl]

Well as long as the LPA is registered/activated and there is no clause in it saying it can only be used after a diagnosis of lack of capacity then the conveyance is wrong.
If it's your conveyancers are wrong, if you've appointed them go somewhere else but if the buyer has appointed them then the only real option I can see is to get an Independent Mental Capacity Advisor (IMCA) to do an assessment, there's plenty around if you google one in your area you should find plenty of them, you will have to pay for this so ask the price.
Because I don't have an LPA for my wife we get an IMCA appointed for free and I'm supposed to report any concerns I have about her care to him as well as the home's manager and I can contact them at any time about any concerns or for advice.
K

 

[Rosie56]

Can you try a different conveyancer/ solicitor? Maybe a short consultation with all your documentation to ask if it is acceptable to the new people before deciding if to set them on or not?

Thanks, Silkiest. We opted to go with this legal firm as they came in a sort of package with the sales and auction costs; my brother did try Mum's own solicitor and left many messages with him but got no reply. In the end we pretty well gave up on that one. To be honest I think the paralegals with the auction firm are within their rights (though being particularly awkward about it, since Mum is already in the dementia nursing unit). I've accepted that we need to get an assessment, but the problem now is doing that.

 

[Rosie56]

I have lasting PoA (both kinds). In most situations it has been fine. But in a couple of contexts I also had to get (and pay for) a GP's letter saying that my PWD lacked mental capacity.

Thanks, Sarahdun. I would be willing to do that but the GP refuses to have anything to do with it, saying it's a job for the local mental health team. The team, meanwhile, are resolutely ignoring my calls. I've never been in a situation quite like this before; it's as if everyone is passing the parcel and is determined to shove the work onto someone else. It probably doesn't help that she has only just joined that GP's surgery, having been transferred from her old one when she moved into the care home.

 

[Rosie56]

Well as long as the LPA is registered/activated and there is no clause in it saying it can only be used after a diagnosis of lack of capacity then the conveyance is wrong.
If it's your conveyancers are wrong, if you've appointed them go somewhere else but if the buyer has appointed them then the only real option I can see is to get an Independent Mental Capacity Advisor (IMCA) to do an assessment, there's plenty around if you google one in your area you should find plenty of them, you will have to pay for this so ask the price.
Because I don't have an LPA for my wife we get an IMCA appointed for free and I'm supposed to report any concerns I have about her care to him as well as the home's manager and I can contact them at any time about any concerns or for advice.
K

There IS a clause in the PoA saying it can only be used after a diagnosis of lack of capacity. The problem is that someone at the hospital clearly made this diagnosis, since they didn't allow Mum to return home - one of the doctors actually said to me that she no longer had legal capacity - but there doesn't seem to be any record of that on file which will satisfy the conveyancers. Thanks for the suggestion of getting an IMCA. I didn't know these existed or that you could appoint one, so if I don't get anywhere in the next few days, I will look for one in her area. That sounds as if it could be the way out of this ridiculous mess.

 

[Louise7]

Do you have the Dols form 4 'Mental Capacity Assessment' amongst your Dols paperwork? In my Mum's case this was completed by a doctor.

 

[Kevinl]

Do you have the Dols form 4 'Mental Capacity Assessment' amongst your Dols paperwork? In my Mum's case this was completed by a doctor.

Good point, I've just looked at the section 4 of the dols form and it is filled in by a consultant psychiatrist and on page 2 the box "In my opinion the person lacks capacity to decide..." Then goes on and on page 4 is the psychiatrist 's signature. If you have the dols form that should do.
K

 

[Rosie56]

Do you have the Dols form 4 'Mental Capacity Assessment' amongst your Dols paperwork? In my Mum's case this was completed by a doctor.

Good thinking. I never saw the DoLs paperwork and it wasn't given to me - I live a long way from Mum and although I'd been visiting, I wasn't present when she was discharged from the hospital (we weren't told until the last minute that it was happening). But I think the care home has a copy. If it turns out to have been completed by the social worker based at the hospital, as some of Mum's paperwork was, then we're no further forward (I already know the auction people won't accept that) but it's worth asking.

 

[Rosie56]

Good point, I've just looked at the section 4 of the dols form and it is filled in by a consultant psychiatrist and on page 2 the box "In my opinion the person lacks capacity to decide..." Then goes on and on page 4 is the psychiatrist 's signature. If you have the dols form that should do.
K

Thanks, I definitely need to follow this up. Will ring the home tomorrow.

 

[Louise7]

Good thinking. I never saw the DoLs paperwork and it wasn't given to me - I live a long way from Mum and although I'd been visiting, I wasn't present when she was discharged from the hospital (we weren't told until the last minute that it was happening). But I think the care home has a copy. If it turns out to have been completed by the social worker based at the hospital, as some of Mum's paperwork was, then we're no further forward (I already know the auction people won't accept that) but it's worth asking.

Yes, definitely worth asking the home. When Mum was in hospital the social worker wrote a file note to say that she considered Mum to lack capacity but when the Dols forms were subsequently filled in capacity was assessed by a psychiatrist from the hospital (and a doctor when in the care home). At no point did any of Mum's social workers get involved with assessing capacity in relation to a Dols authorisation. My experience has been that in certain situations social workers seem quite happy to say that someone lacks capacity but when it comes to putting it down formally - in circumstances where the decision could be challenged/appealed - then they don't seem to want to get involved. Good luck, hope the home can provide you with the info you need.

 

[Rosie56]

Yes, definitely worth asking the home. When Mum was in hospital the social worker wrote a file note to say that she considered Mum to lack capacity but when the Dols forms were subsequently filled in capacity was assessed by a psychiatrist from the hospital (and a doctor when in the care home). At no point did any of Mum's social workers get involved with assessing capacity in relation to a Dols authorisation. My experience has been that in certain situations social workers seem quite happy to say that someone lacks capacity but when it comes to putting it down formally - in circumstances where the decision could be challenged/appealed - then they don't seem to want to get involved. Good luck, hope the home can provide you with the info you need.

Thanks. I'm keeping my fingers crossed that this is the way forward and I won't have to employ someone privately - either a psychiatrist to do someone else's work for them, or a lawyer to order someone to do their own job. The final irony is that it's the local authority on our backs to sell the house, so that they aren't out of pocket on Mum's care, and the health centre that's refusing to lift a finger to help is run by the same local authority. Talk about a rock and a hard place...!