Working collaboratively with other lawyers

18 Apr

 

Working collaboratively with other lawyers

 

My specialism is working with people who have physical, psychological or cognitive impairments and their carers.  In other words, people with some kind of disability and if they are too impaired to manage their own affairs, then with the people who help and support them.

 

Having a disability does not prevent that person from needing other legal services, so within Nash & Co I work collaboratively with my other colleagues to ensure that these people are supported.

 

At any one time, I am usually involved in the files of around 2-3 other cases within our firm and support the other people to ensure that they understand the issue and can assist that person to achieve the best outcome.

 

I have been involved in litigation, but most commonly it is to do with property sales or divorce.  In order to get divorced, the person needs to have sufficient cognitive ability to instigate the divorce, which they may not have, however that does not prevent their spouse from issuing proceedings and in which case the divorce has to be dealt with, including the financial division of the family assets.

 

I advise about some care issues and care funding and in divorce proceedings that ensures that the party that we represent has the best advice in the circumstances.

 

I have recently come across other families where they have seen other firms of solicitors and they have felt that they could not assist.  This leaves these families without access to justice, which is considered a basic human right.  When we are able to assist they are incredibly grateful for the support and to feel that someone is on their side.  On behalf of my clients, I feel saddened that they have not been able to find the assistance that they have needed so badly, until they came to Nash & Co.

 

If this affects you and you do not know where to turn for assistance, then please get in touch.  Basic human rights are for everyone, including people with disabilities.  People with disabilities are entitled to good legal representation.

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Sexually inappropriate behaviour

4 Apr

 

Sexually inappropriate behaviour

 

With a dementia, there can be some side effects, which can be challenging to manage. Although sexually inappropriate behaviour is not the most common side effect, it can still be displayed. This then creates problems for all parties involved in this situation.

 

For other people who were nearby, including friends, family and carers, they are potentially at risk of experiencing this inappropriate sexual behaviour. For able-bodied carers and family members they should be able to redirect the person or at the very least defend themselves against something unwanted. However somebody more physically vulnerable, such as a co-resident in a care home, could find themselves the victims of an assault. The criminal offence of sexual assault, requires the understanding that this is an assault, however this is not present in somebody with a dementia, therefore this could be seen as a situation with two victims.

 

The family of an individual displaying inappropriate sexual behaviour find this very embarrassing as well as challenging to manage. It can also lead to breakdown or at least issues with family relations as visiting that person might put themselves or other family members they bring with them at risk. I have heard of cases where family members do not bring their young children to the house of the person with dementia to protect them from potential assault or witnessing an assault.

 

This kind of presentation requires specialist help to care for them and often in numbers of at least two carers and possibly more, depending upon how insistent the person with dementia is. In a care home or domiciliary home, the professional carer is entitled to a safe working environment. The family want to be able to visit their loved one without having to worry about what might happen.

 

The person with dementia could be sectioned under the Mental Health Act, initially under section 2 and if they are unable to be treated within the 28 days that section 2 is valid for, they could be sectioned under section 3. Section 3 lasts for up to 6 months before it needs to be renewed, however people will be discharged from the mental health unit in which they are detained as soon they are able to be released into the community or to a care home, therefore they might be in the mental health unit for less than a period of six months. Often in mental health units, the healthcare professionals will prescribe appropriate medication to modify the person’s behaviour. This could include either anti-anxiety medication and/or anti-psychotic medication. This medication should only be prescribed for as long as it is necessary, and should therefore be reviewed regularly in order to ensure that its ongoing prescription remains appropriate.

 

This presentation is challenging for lots of reasons and is often not talked about. Although it is not the most common of challenging behaviour associated with dementia, it is nevertheless known to experienced healthcare professionals who care for people living with dementia. If this affects you and you wish to have some help and support please contact me at Nash & Co.

Disability Adjustments

21 Mar

 

Disability Adjustments

 

Nash & Co have recently invested in a portable hearing loop.  We have bought it so that if clients have difficulty hearing, then we can assist.  We want people with disabilities to feel comfortable with us, that we are prepared to assist them, so that they can hear us and with full information, we can listen to what they want to happen.

 

When we had our new reception done a few months ago, we also changed the small step immediately in front of our new door, so it is now a ramp.  Lots of adjustments don’t have a negative impact on able bodied people but can make a huge difference to those living with disabilities.

 

When I talk to clients or the relatives and carers of clients with disabilities, I see them as people first, they are not their health issue.  I make sure that when they give me instructions about an issue, that I treat them as that – a person, not just a disabled person.

 

I recently had a client cry in front of me, he is a carer for his parent and wanted to “hold it together”.  I explained that he was more likely to make himself ill from not engaging with his emotions and bottling them up, than from crying, as I handed him a box of tissues.  I reassured him that he never had to feel that he needed to apologise for crying in front of me.  I have seen many clients cry.  I aim to make a safe space for them to be able to be themselves.  In that space, I can learn about them, their perception of what the main issue is and as a result help them to achieve the outcome that they want, once I know about them.

 

Life as a carer is tough, 85% of carers of someone with a dementia has a clinical depression within a year of diagnosis*.  It can force both the cared for and carer to cross boundaries that they hoped they would never have to, such as helping someone go to the loo or shower.

 

Some adjustments are easy and being kind and compassionate is one of them.  It is also important to be non-judgmental, a few bad decisions or some bad luck and many of us could find ourselves with an injury or illness.

 

We need to create a world in which we would want to live, if we had an illness or disability, with compassion and the simple physical adjustments that make life easier, such as the ramp on the front of the Nash building and our portable hearing loop.

 

 

*Alzheimer’s Society

Shame

7 Mar

 

Shame

 

Shame is a difficult subject to talk about and people with disabilities and their carers are often shamed by the disability or something in particular about it and so don’t like to talk about it.  Shame can eat away at people’s mental health state and exacerbates an already difficult situation.

 

We live in a society that superficially seems able normative, yet around 7% of the population is registered as disabled, so that would not include people who have disabilities of some kind and are not registered.  This is an large part of the population and some of those disabilities will be hidden, so observers might not even notice.

 

Yet when the subject of the shame is talked about almost no-one feels the same way about this issue as those around them do.

 

Carers can struggle with shame, either that they know this “secret” and are directed not to share it beyond themselves, as they have to know, since they are dealing with the consequences and would benefit from some support and being able to talk about it.  Or alternatively they are shamed by it themselves and don’t want anyone to know because “what would they think?”.

 

In truth, there have been studies by psychologists about observers and people are in fact very observant of others, they are also very non-judgemental.  People “in the street” or in classical legal terms “on the Clapham Omnibus” do notice others, but the people themselves are worried about their bad hair and whether they look fat or thin or ugly etc.  What people notice is that they are there, not that they are fat or thin or have bad hair.  People worry about themselves a lot and that is what is occupying their thoughts, not judging others.

 

Shame isn’t helpful, it only makes a difficult situation worse and it isn’t necessary to hide secret, because people aren’t judged badly for this perceived awful secret!  That doesn’t necessarily mean that people should shout from the metaphorical rooftops about their disability issues, just that if they need to ask for help, it is usually willingly given.

 

Nash & Co have just invested in a portable hearing loop, we are here to help make things easier for people with disabilities and we hope are clients feel that they are in safe and understanding hands with us as a firm.

Respite Care

21 Feb

 

 

Respite care

 

I act for some people as their attorney or deputy, either where they don’t have family that can do it or they are not local.  And a couple of the lovely people that I help to care for have had health issues that has meant that they have needed respite care.  And it is something that everyone dreads.  They believe that it is the beginning of the end!

 

Well, it might be the beginning of the end, but the end was coming anyway and respite might just be the booster that keeps that person at home a little bit longer.  Or the in the case of my clients, it was because they were ill or injured and needed some support to get them over their urgent health issue.

 

The choice of respite is as important as the choice of care home when someone is permanently admitted, but the criteria for the decision should be different.  Respite is just a temporary home, so they need to be able to fit into the environment into which they are coming, therefore the other residents need to be in a similar state of health approximately.  And the care home needs to ensure that as well as assessing the person and their needs, which they will need to do in order to care for them, but that they won’t over care for them and disempower them from being independent at home again, once the respite is over.

 

Respite also gives a baseline regarding needs, which is of course, only relevant for that particular period of time, if the person has a deteriorating condition.  However when they go home again, it is useful to know that they have been settled at night for example, which helps inform the level of care that they will need when they go home again.

 

Respite can be needed for other reasons as well.  Where the partner / spouse is the carer, they can easily develop carer burn out and respite gives them a break, so that they can cope in the longer term.  This need for a break is not limited to carers who live in the same property, but children or other relatives who are carers and provide a lot of support can also have issues about burn out and need a break.  They will find it difficult to relax when they are concerned about their loved one, so respite can be the peace of mind that they need for their temporary break from the caring role.

 

It is useful to stay in contact with the respite home, so that even if you are miles away, you can still know what is happening and have input into how the person is respite is being cared for.  The respite home will also find the open communication helpful, so that they can deal with any issues that crop up as whatever the issue, it might have been something that happened before and there is a strategy to deal with it.

 

Good respite is helpful, even if it is the beginning of the end.  In the cases of the clients that I assist, it allowed them to have extra support for a short period to get them over an acute period and then they are back at home again and enjoying their live

Court of Protection applications

6 Dec

 

Court of Protection applications

 

What do the Court do?  The Court of Protection have one remit, that is to make decisions on behalf of people who lack capacity to make them for themselves.  If they are found to have capacity on any particular issue, the Court lacks jurisdiction.

 

They make simple deputyship orders for people who lack capacity and did not make LPAs before they lost it or perhaps the person has always had an impairment.  These are relatively straightforward applications and within the Court, might be considered by a senior administrator rather than a judge, as they are considered sufficiently straightforward.

 

So, what are the more complicated matters they will deal with?  They make decisions that involve and an attorney or deputy that is considered “self-dealing”, which is when the person in charge of the money wants to purchase or sell an asset to themselves.  It could also be about investing money in the attorney or deputy’s business, something where the transaction has a financial link to the deputy or attorney.

 

The Court also want to look at requests for gifting.  There have been a number of cases recently following which the Court has tried to provide guidance on what is acceptable gifting and what isn’t, which helps with what needs to be reviewed by the Court as being something that is more than just basic modest gifting.  The Court will grant orders for gifts more than just something very basic, but there needs to be a good reason to do so.  The Court needs to be persuaded that it in the best interests of the person whose money it is, to give it away and is therefore not available to them for their own needs.

 

The Court will deal with fraud cases, where someone has used the money inappropriately and was way beyond their authority to use the money or they have simply stolen it.  The Court will seek to recover the money for the person if they can and will also replace the attorney or deputy with someone more suitable to manage their affairs.

 

The other thing that they consider is disputes, which covers all kinds of things from financial to health decisions and some issues that cover both.  This has arisen because two sides don’t agree about something and usually each of them thinks that they are right and that what they want is in the best interests of the person.  The Court will hear both sides and make their ultimate judgement.

 

These applications that are more than just simple deputyship for finance can be difficult to do, they require lots of forms and the arguments have to be structured in a way that will make a difference to the Court.  There is legislation that deals with people who lack capacity and the Court needs to be persuaded that this legislation is not sufficient to deal with the current situation and something different needs to happen.  There is often a long delay between submission of the forms and the order being granted, so if there is a requirement for the case to be seen promptly, then this is another challenging aspect of these kinds of cases.

 

 

Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions – Part2

22 Nov

 

Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions – Part 2

 

I have had quite a bit of feedback on the article I wrote on this subject, so I thought it worthwhile to go into some more detail about this issue.

 

In any one day, we make thousands of individual health and welfare decisions, including such things like how much porridge to put on the spoon each time we take a separate spoon full and how big a gulp or sip of tea we have each time we drink our tea.  The vast majority of these decisions no attorney or deputy would get involved with, they would happen with the carer on hand without the deputy sitting there saying that the tea is too hot by 1 degree or there is 10ml too little milk in the coffee!  So, whilst that sheds light on what as a professional I won’t do, it still doesn’t necessarily assist with what I would do.

 

It is also important to appreciate that the level of understanding that we have for any given situation as an able person is often quite low, yet we don’t question capacity.  The House of Lords undertook a post legislative scrutiny of the Mental Capacity Act (MCA) in 2014 and they found that in general, health professionals are “paternalistic” and social services are “risk averse” and as such the MCA was not working as well as it was envisioned.  Life is full of poor decision making and bad judgement by all of us sooner or later!  How many times has anyone been asked to discuss liver disease and its full gamut of health consequences when ordering their third cocktail and a detailed assessment of the impact on their immediate family!

 

Generally, the key decisions that someone wants their attorney to make are around life sustaining treatment and where they live.  There can also be some other key decisions that are important to that one person, but are not necessarily generically important, such as ensuring that the person always has a particular brand of chocolate in their room or a drink of wine (which in one case I dealt with had to be thickened to make it like a jelly sweet!).

 

Life sustaining treatment is not just CPR (Cardiopulmonary Resuscitation) otherwise known as chest compressions, it can be anything that sustains life, including in some circumstances food, fluid, antibiotics or trips to hospital.  Most people want these important decisions reserved back to their family or someone who is not going to make a risk averse decision.  I met an elderly man recently and what he wanted was to live at home in his last few days / weeks / months with his dog, he was in hospital and he missed his dog.  There was risk in him going home in his poorly state of health, but he was less concerned about the risk and more concerned about being with his dog.  This is where the high level of understanding is then expected of a person with an impairment, yet this same high level of understanding is not necessarily expected of able bodied people and all the detailed consequences of the decisions they make.  This is where principle 3 of the Mental Capacity Act is relevant “A person is not treated as unable to make a decision merely because it is an unwise decision”.

 

The other key decision is about where someone lives, which in the context of being an attorney is usually relevant when the person is in hospital and wants to leave, usually to go home or when there is a question that they might need to go into care and they want to stay at home.  When there is a bed shortage in hospital there can be pressure on the attorney to find a suitable care home for the person to go to within a very short space of time.  I have been involved in a few cases where the suitable bed meant a delay of a couple of days to the right care home and when threatened with moving out to an available bed, as attorney they can refuse to allow that person to be discharged to the available bed, if it is unsuitable, to ensure that the few days for the appropriate bed is waited.  The decision can also be about whether or not the person goes into care or stays in their own home.

 

Attorneys who take reckless chances are at risk of someone applying to the Court of Protection for their removal, but there is a difference between taking a measured risk and being reckless.  This is the balance between length of life and quality of life and where the divide between those two things exists.  The answer to that issue lies with a discussion with the donor of the power of attorney and with those who know the person well and then finally onto the broad by necessity shoulders of the attorney to take responsibility for the decisions that they make.