Mum on 117 aftercare, in Care Home and has written to solicitor

[Mimi1977]

Mum is under a 117 after care. She has always had mental health issues but 20 months ago she was diagnosed with Alzheimer’s and 15 months ago she entered a residential care home. She is not an acute case yet, but the care team who know my mum well , felt that being at home was not right for her.

My mum constantly talks about going home, last year before Xmas she became distressed and ended up being re-admitted into hospital into a psychiatric ward. She then went back to her care home and is fine, still talking about home but generally calm and happy.

A few weeks ago she wrote a letter to a solicitor – I don’t know what was in that letter, but i’d imagine she is angling for them to help her to get home. I rang the solicitors and told them I have a registered EPA for mums legal and financial affairs, gave them a general picture, as they are not the firm who have dealt with my mum’s affairs in recent years – they know nothing of her background.

The solicitor has since written to the care home saying they will be visiting next week. They say if my mum is able to write a letter, then she has some form of capacity. I found out about this late Friday afternoon, so not able to ring my own solicitor yet.
I live 7 hours travelling time away from my mum – plane and train required. I am not clear what this solicitor is hoping to ascertain or do. I just don’t want them to start a chain of events that is going to cause my mum anxiety. I know the home is the best place for her – she is well looked after. She has underlying health issues – COPD and suffers from chest infections – she smokes. These can turn nasty, in 2015 while in hospital she got pneumonia. The home are great at being on top of anything in her day to day health. I would worry about her living a solitary life with just meals on wheels and a few hours of home help.

A few questions:-
1) Under what legal grounds are these solicitors visiting? I don’t want to deny my mother her rights, but I am concerned by potential upset and anxiety it may trigger, let alone cost. I dont think my mother is saying she is being abused. She may be saying she wants to change her will as a pretext to a conversation about going home.

2) What can I do? I am her only relative. By the way, I have rented out her home as it was the best option in terms of its general care – so mum going home isn’t on the cards in the short term.

3) Can I ask someone to sit in on the discussion as my proxy, given I am responsible for her legal and financial affairs?

Any advice would be welcome.

Mimi

 

[Kevinl]

I suppose it depends on whether or not it has been said that she "lacks capacity".
If so then the solicitors hands may be tied but if not then she's free to do as she chooses is the situation as I understand it.
If she's capable of writing a letter to the solicitors then she must have at least some capacity so it would be difficult for them to ignore the letter, she may want to make allegations about the home for example.
You say you have an EPA for finance but you don't mention health and welfare, where she is and why she's there I would think is a health and welfare issue not a financial one I would have thought.
K

 

[Katrine]

I would ring your solicitor on Monday and ask them to liaise with this firm. If your mum is already your solicitor's client via your LPA then they may be able to steer these other people away, although there's no reason in law why someone cannot have more than one solicitor. I think this firm is acting properly under due diligence. As they say, if someone is able to write a letter to them then that person has some capacity.

Perhaps your solicitor should point out to them that you are your mum's financial attorney and they would have to apply to you to get their bill paid. However, I expect in reality you cannot deny your mum access to legal services if she has capacity. It depends what she wants to achieve.

I share your foreboding about potential expense and upset all round. However, this cannot be the first time someone with an activated POA has asked to see a solicitor, so I'm hoping that your own solicitor can provide reassurance. If you were living locally you could ask to be present at the meeting but I wonder if they would refuse on the grounds that they want to assess her capacity 1:1 before considering taking legal instruction?

 

[pippop1]

Are you totally sure that it was your mother that wrote the letter? She may have signed a letter that was given to her (was it typed for instance?) or someone else dictated or wrote it for her to sign.

Just saying...

Perhaps your lawyer can contact your Mother's and find out the language used in the letter and its format to give you a clue.

 

[canary]

Is your mum under a section 117 or a DoLs in her present care home? I am assuming that she is as she talks about going home, which isnt happening. If she is under a 117 or DoLs this is only given if she has lost capacity.

 

[Katrine]

Under UK law, someone’s capacity is judged according to the specific decision to be made. A solicitor can check whether someone wanting them to assist with a legal process can:

• Understand the information relating to this particular decision (including its benefits and risks)
• Retain the information for long enough to make this decision
• Weigh up the information involved in making this decision
• Communicate their decision in any way.

When my mum changed her will, and set up POAs, she was very unwell in hospital and was clearly both physically and mentally impaired. Her solicitor visited on two separate occasions and was satisfied that my mum was clear about her instructions and was able to say exactly what she wanted, without prompting. The solicitor therefore deemed her to have legal capacity for the purposes she required. The fact that my mum was also making unwise choices was unfortunate. The solicitor gave her best advice but my mum was adamant on a different course of action. The solicitor had to either act on her instructions or walk away and refuse to represent her.

Of course if someone is under psychiatric care the solicitor would also (one would hope!) be extra careful before taking instructions. They might also seek an independent psychiatric report if legal capacity is in doubt.

 

[Penmon79]

I'm told by a solicitor friend that you would be advised to email your concerns about your mother to the solicitors whom she has consulted; that way you are helping them but have also put those concerns in writing - by a speedy method.
A competent solicitor will be cautious in assessing your mother for capacity.
I do hope that you can sort this out.
All the best.

 

[Mimi1977]

Thank you all for your feedback. I am going to ring the firm my mother approached and ask them to delay their Tuesday visit until I can talk to her solicitor who has dealt with her matters these last 20 years - he knows my mum and me. I would prefer him to visit my mum and deal with this matter.I will take up the suggestion to email them; convey my concerns but also my willingness to insure my mothers rights are upheld.

As someone has pointed out, I dont know if she wrote the letter, nor do they.

Writing today's post and reading your feedback, has help me clear my head and provided me with clarity re the next step.

Thank you all.

M

 

[Kevinl]

Is your mum under a section 117 or a DoLs in her present care home? I am assuming that she is as she talks about going home, which isnt happening. If she is under a 117 or DoLs this is only given if she has lost capacity.

I don't understand, section 117 funding is nothing to do with DoLS, in fact most people getting section 117 funding are at home or in the community it's a funding source for on going care until the person is discharged when it is withdrawn.
People kept in care under a section 3, 37, 45A, 47 or 48 of the Mental Health Act 1983 are entitled to on going aftercare after they leave the NHS care.
Someone funded under section 117 can still very much have capacity.
K

 

[Kevinl]

I am going to ring the firm my mother approached and ask them to delay their Tuesday visit until I can talk to her solicitor who has dealt with her matters these last 20 years - he knows my mum and me. I would prefer him to visit my mum and deal with this matter.

Of itself that could be seen as a suspicious thing to do, restricting access to someone like that, not be me of course but having her in a home where she may have said she doesn't want to be then when she contacts a solicitor trying to have them back off may come across badly, it could sound controlling.
Remember too the (new) solicitors have a duty of confidence to their client are as such shouldn't talk to anyone about anything.
If they believe she has capacity (as Katrine explains) then the new solicitors can do as she instructs so take care.
K

 

[canary]

Im sorry Kevin, I didnt explain that at all well, did I? In mitigation I was starting a migraine m'lord
In the first post mimi said "A few weeks ago she wrote a letter to a solicitor – I don’t know what was in that letter, but i’d imagine she is angling for them to help her to get home", so I was answering on the assumption that it was indeed about her going home (although I do realise that it may not be about this after all). On this assumption, I was pointing out that if she is asking to go home and this is not happening then she must either be sectioned (sorry, I got the wrong term) or have a DoLs. In either of those cases she will have been assessed (including a capacity test) to make sure that this is appropriate. I just thought that it would be something that the new solicitor should know.
Apologies if I have confused everyone.

 

[Zen master]

Im sorry Kevin, I didnt explain that at all well, did I? In mitigation I was starting a migraine m'lord
In the first post mimi said "A few weeks ago she wrote a letter to a solicitor – I don’t know what was in that letter, but i’d imagine she is angling for them to help her to get home", so I was answering on the assumption that it was indeed about her going home (although I do realise that it may not be about this after all). On this assumption, I was pointing out that if she is asking to go home and this is not happening then she must either be sectioned (sorry, I got the wrong term) or have a DoLs. In either of those cases she will have been assessed (including a capacity test) to make sure that this is appropriate. I just thought that it would be something that the new solicitor should know.
Apologies if I have confused everyone.

Good evening. Hopefully you have received good advice so far.
Capacity is very much decision specific so it cannot be stated simply that someone lacks capacity. It has to be for whatever the subject is. As previously stated if your Mum is in a care setting and has expressed her wishes to leave, either by words or actions then the care setting must escalate this as a potential Deprivation of Liberty. Many of the resulting problems are as a result of case law which has resulted in DOLS teams being swamped by requests and unable to assess in a reasonable time frame. The care home however if they have submitted a request to the local authority have discharged their duty. As nearest relative you would be approached as their named representative to seek your views. If there is no one available then a paid representative should be appointed. This is usually a locally contracted advocacy service for an IMCA.
Unless your mum is still detained on a treatment order (I.e. Sec 3,37 etc) then she could only be on approved sec17 leave. I would think this is unlikely however sec117 would apply unless discharged from this. In my experience this is unlikely in these circumstances. Sec 117 has no power in terms of placement although guardianship orders would have. You would be aware if this was the case. Specifically Sec 117 only applies to the original cause of being on a treatment order so as an extreme example if you got placed on a section 3 years previously following a psychotic illness yet years later needed a care home for a different cause i.e. Alzheimer's and or physical frailty then potentially the local authority could financially assess as care needs not related to original reasons for sec 117 aftercare. In reality this is highly unlikely as it's a minefield and very open to interpretation and costly legal challenge. Cash strapped councils are probably looking at this as a way of adding revenue/protecting resources for a group often thought off limits.

Rambled a bit so sorry! The original question is curious that if you were able to compose aletter stating who you were, where you where and highlight an issue requiring legal advice then I think you could be hard pushed to say that the author lacked capacity at that point. Whether it is unwise is a whole different matter and often more challenging where risk was is involved.

My advice on actions is as others have stated is let the solicitors talk to each other, ascertain DOLS status as this considers capacity to care as its main purpose and take a deep breath!
Best wishes