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Best Interests Meetings

23 Nov

 

Best Interests Meeting

 

These meetings take place when someone is receiving treatment and there needs to be a discussion about how they will be cared for in the future, when they are cognitively impaired and cannot make that decision for themselves and there is no attorney who directs what happens, as the person has not created Lasting Powers of Attorney.  They can either be a multi-disciplinary discussion as the case in complex and it is easier to decide what should happen going forward when everyone is in one room and there can be a full and frank conversation about that person’s various and complex needs.  Additionally and alternatively they can take place where there is a dispute about how someone should be cared for, particularly if that dispute is with the family.

 

These meetings are aimed at being constructive rather than too formal, but where there is a minute taker and a room full of health professionals from various disciplines, they are very intimidating.

 

Families know their loved one well, they know what they would want and have a good idea about how they will react to certain situations, however they are usually not healthcare professionals and can struggle to feel that they have been heard.  These meetings take place around a highly stressful situation, when a loved one is unwell, that’s enough stress to deal with on its own, then adding what is perceived to be an intimidating meeting can often be too much to be able to sit rationally and articulately and be understood.

 

The purpose of the meeting is to make a decision in that person’s best interests.  In accordance with the House of Lords post legislative scrutiny of the Mental Capacity Act 2005, which was published in 2014, the Lords said that in general health professionals are paternalistic and social services are risk averse.  This makes it hard for families to assert that their loved one would prefer an outcome that involved more risk that the health care professionals are comfortable with.

 

I have supported many families in these kinds of meetings, to ensure that they feel that they have been heard and are supported so that they don’t feel quite so alone and do not understand the process that they are involved in.  If you need any help with this, please contact me.

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Dealing with the immediate issues after a loved one has died

9 Nov

Dealing with the immediate issues after a loved one has died

 

The first thing to say about this is that everyone grieves in a different way.  If the person who has died was a family member or some other person you were close to, or supposed to be close to, how each person deals with the emotions of that will be different and some very surprising.  Not every parent loves their child and not every child loves their parent, so on their death, there is a social “norm”, that the survivor will be sad and bereaved, which might or might not be the case, they might be relieved!  Remember there are no rules about grieving, you need to do it when you are ready and in a way that works for you!

 

So having managed to cope with the immediate few minutes and hours after someone has died, ensuring that the medical professionals are called in to certify the death and the funeral director is called to collect the body, the next few days seem to be a flurry of activity at a time when the survivors might well be feeling numb.  They feel like they are going through the motions and it can be almost like an “out of body” experience, if the stress of the situation is that challenging.

 

The first thing to do is register the death and this cannot be done until you receive the appropriate medical forms from the GP or whoever is certifying the death.  If there is going to be a cremation, this certification process requires signature by two separate doctors, to ensure that there was nothing suspicious about the death.  With that you can go ahead and arrange the funeral and book the cremation (or burial).

 

The funeral director is a professional, they deal with bereaved people every day and are usually very understanding.  It is their job to try to get the funeral that you and your loved one want, so they will patiently talk you through what to do next.

 

As well as arranging the funeral, you might also arrange a wake, a party to celebrate the life of the person who has just past.  This is an opportunity for all those who knew that person to get together and talk about their memories of that person and what they will miss about them.  They are a mixture of joy and sadness and can be restrained or raucous!

 

It is after those things have been resolved that you can turn your attention to the estate, which I have heard referred to as a “legal nightmare”!  Depending on the size and complexity of the estate, it can be daunting and others can be far more simple.  If help is needed, Nash & Co have a team that can assist.

Dying and Bereavement

26 Oct

 

Dying and bereavement

 

When a family member is terminally ill, everyone deals with that information in different ways, that includes the person themselves.  The Kubler-Ross model has 5 stages: Denial, Anger, Bargaining, Depression and finally Acceptance.  These stages can work for all parties involved.

 

Family members can therefore choose to be very involved or not at all and this difference of grieving process has an impact on family relations, at an already difficult time.

 

Some people are afraid of dying and don’t want to do it alone, they will hang onto life for as long as they can.  Others accept it and at the end willingly go there, rather than cling to life.  Some terminally ill people don’t want their family to witness their death, they consider it personal.  So for family’s who are on a 24 hour vigil, the 5 minutes in which they leave the bedside to have a comfort break will be the 5 minutes that person chooses to pass away.  Others want their family there, will white knuckle the hands of a loved one, rather than let go and feel alone.  Either situation has its emotional impact on all parties.

 

Some family members will communicate with the others that turn up and let them know that if there is anything they can do to help, they will, yet when asked, are always busy with something more important.  They just can’t deal with facing the situation.

 

Some family members want to be involved with everything, do as much as they can, which might be more than is required and might be an invasion of the privacy of the dying person.

 

So what is the answer?  There is no “one” answer and there is no “right” answer.  Everyone deals with death and grief in their own way.  It is important to remember that, however anyone else deals with it, they might not understand how you do and vice versa.  So just give everyone a bit of slack.

 

When in doubt, imagine yourself in a week, a year and a decade and do the thing that means that you won’t have regrets, whatever that is.  And whatever you choose, know that you are not the only person in the world that has felt that, grief is universal, even if you feel alone in the moment.

Pain – managing it for someone else

5 Oct

 

Pain – managing it for someone else.

 

See a loved one in pain, especially if they are having difficulty explaining their pain is really hard to watch.  You can look at their broken body and be sure that they are in pain – they just must be – you only have to think about their injuries!  But pain can be a personal thing, some people are far more stoic than others.

 

So if your loved one cannot explain in words their pain, how do you know?  Do they flinch or grimace?  Are there any changes?  Does something affect their response?  Do they shift their position?  And what can be done to help them?

 

Firstly, contact their doctor to discuss pain medication.  How pain is usually clinically managed, which is to prevent over sedation is to climb up a “pain ladder”, so pain relief is estimated and then generally started at a low level.  Pain relief can also be given regularly or on an “as required” basis for “breakthrough” pain.  So you can have constant pain relief or just when it gets really bad or a combination of both.

 

So having been given pain relief for a few days, to see how they get on, the loved one should be under constant monitoring to find out if this level of pain relief is enough.  So are they still grimacing?  Do they display shifting movement?  Do they look like they are unhappy or hot or cold?  Even when very sleepy and non-communicative, people tend to shift their bodies about rather than lying in a relaxed manner.  And again, if it is safe to lightly touch them somewhere, see how they respond to being touched, they might appreciate the comfort of human touch and you can then feel through your hand any flinching or shift in their body as well as visually observing it.

 

If they are still in pain, then generally pain relief is increased about 20% per rung of the “ladder” and as the pain relief goes up, the person can become more sedated.  The end stage of some diseases are very painful and so pain relief increases and they become more sedated, eating and drinking less, until their body finally shuts down potentially from both the underlying disease and / or lack of hydration and nutrition.  As pain relief increases there is a really careful balance when the person is really poorly, as too much pain relief or too big an increase can trip over the line of providing comfort into assisted dying.  Assisted dying in the UK is illegal, as it is in many other countries and the healthcare professionals are very cautious in this area of care to stay within the bounds of legality.

 

This balance at the end of life is really important, if someone is dying a painful death, then they should be provided relief from that pain and sadly the pain relief can make them more sleepy and in truth, this could to bring about their death more quickly than without it, but no-one should die in agonising pain!  What the professionals cannot do is actively take steps to expedite death, just make it more comfortable.

 

And for the carers watching it, it is an awful experience.  Just awful!

Managing Risk for People with Dementia

21 Sep

 

Managing risk for people with dementia

 

We all take risks, we do it all the time.  We cross the road without looking carefully, eat too much, exercise too little, drink too much alcohol or smoke to name just a few of the things that all of us do.  And sometimes this has serious consequences, with the number of road traffic accidents there are a year, but there are far fewer accidents, than the numbers of people carelessly crossing the road each day.

 

People with dementia are still people, I have red hair (sometimes it is even referred to as being ginger!), but I’m not just known as that, I’m also a solicitor, resident of Plymouth and parent.  There are lots of different facets to me, but when dealing with a person with dementia, why is that the key facet that is seen?  They are more than that, much more.  So if I can take a risk, why can’t someone with a dementia?

 

From the human rights aspect, they can, they are still human and human rights are universal!  The overriding human right it the right to life, so as long as they are not seriously risking their life, everyone, including people with dementia should be allowed to make unwise choices.  We are all allowed a private and family life, freedom of religion, as well as freedom of assembly and association and freedom from discrimination.  We should all be allowed to exercise all of our human rights and it is only at the point that we risk our life, should our ability to exercise our human rights be curtailed and they should only be curtailed to the extent needed to protect our life.

 

In the Mental Capacity Act 2005, there is legislation regarding ensuring whatever decision is made on that person’s behalf, it is the less restrictive of their rights and freedoms.  The key word here is less, it is not least, to do the least restrictive would be to do nothing, but that might mean that it is too risky and becomes a risk to their life.  How many people with dementia say that they want to live at home with no help?  They might want to, but would be dead in a few days if they did, as they have no ability to care for themselves.  So the less restrictive might be to put in a daily carer, possibly even multiple times per day.

 

People with dementia are still people and like the rest of us, are completely unique, with their own views about themselves and the world around them.  They might be very risk averse or happy to take risks, even big risks.  All their characteristics needs to be taken into account when making a decision about someone with dementia, including what they say now, not just what they would have said when they were well.

 

The decision should be the less restrictive, let the person with dementia feel like they are still a person and not just a medical diagnosis and let them take a certain amount of risk as too restrictive a regime might be just as bad and dangerous for health as a too unrestrictive one.  Balancing risk is about seeing the person first, as a real person and not just their dementia.

 

And to all carers out there, from time to time, you may get it wrong, but mostly you get it right and just by caring, you get it right.  Keep up the good work.

 

If anyone needs advice in caring for a loved one, let me know, I understand.

Mental Capacity – what does it really mean?

31 Aug

 

Mental capacity – what does it really mean?

 

When someone has lost their mental capacity, what does that mean?  With the Mental Capacity Act 2005, capacity is considered to be time and decision specific, but what does that mean?  Every decision that is made is made at a certain time, it might even be made each day at the same time, such as eating breakfast or getting out of bed, but each decision is made every day and tomorrow the decision to have breakfast is a new decision.  Capacity can be fluctuating, so if someone is very unwell today, they might not be tomorrow and their capacity can return.  This is why decisions are time specific.

 

What about decision specific?  Some decisions are much more complicated than others, such as the decision to move house, but a decision about what to eat for dinner is much easier, so someone with poor cognition may not be able to make one decision, but might be able to make another.

 

The statutory test of capacity at stage 2 of the decision making process is about understanding it, weighing it up, retaining it and communicating the decision.  So how does someone weigh up the decision?  The easy answer to that, is to ask them.

 

What isn’t part of assessing someone’s capacity is the “nice answer” or the “risk free answer”.  So whether someone with a cognitive impairment can decide to live with a relative or not, should not depend on whether the arrangement would work well or would be good for one of more of the parties.  Or just nice to see happen!  Ask them if they understand the proposition, look at the different aspects of it, how would an “average person” analyse the situation, unless you know they have skills in the area greater than an average person, then that’s the criteria to assess them by.

 

When deciding if someone has capacity to eat dinner, an average person would be unlikely to know how many grams of saturated fat they have eaten today, or how many calories.  An average person knows they are hungry and what they might fancy eating and that it’s approximately dinner time.  There is no reason to make the decision more complicated than it needs to be.

 

One of the key aspects of the Mental Capacity Act is the presumption of capacity, that someone is considered to be able to make a decision until it is proven that they can’t.  Capacity is often a balancing act and it is only when someone is in a coma or other minimally aware state that there is a total lack of capacity, even people so impaired that they are non verbal can refuse to eat or drink or have care undertaken.  And they might refuse to eat their meal, but agree to eat their pudding or sweets, because they know the difference and have a preference.

 

The ideas behind the Mental Capacity Act were about enabling and empowering people to make as many decisions that they can for themselves.

Lasting Powers of Attorney

17 Aug

 

Lasting Powers of Attorney

 

Following retired Senior Judge Denzil Lush’s comments regarding Lasting Powers of Attorney (http://www.bbc.co.uk/news/uk-40887323), I thought it worthwhile exploring the situation more.

 

Denzil has said that there are risks associated in appointing someone to look after your affairs, for both financial and health & welfare decisions.  He is right, there are risks, however he has said that there are issues with 1 in 8 Powers of Attorney, which means that in the vast majority of cases, families care for the loved ones with diligence and compassion.  For those unfortunate to be involved in the cases of fraud or careless decision making, it can be devastating, both financially and from the family relations perspective.

 

Denzil has also said that he would not create LPAs and would rely on the Court of Protection to appoint an attorney, if he were to become unable to manage his affairs.  What he did not discuss in his article is the cost of doing do and the time it takes.  Deputyship orders can be done in person, but they are complicated and I often see people who have tried and given up.  The legal costs for a simple application for deputyship is IRO£1,500.00+VAT plus the Court fee of £400 (total around £2,200)* and this does not include the cost of the Bond or the ongoing costs of supervision of the Deputy, which can run to thousands of pounds a year.  The result from the Court will be a supervised order covering the daily management of the donor’s financial affairs, but it is unlikely to include health & welfare decisions, as these are rarely granted.

 

If there is anything that changes in that person’s affairs, then a further order to the Court of Protection might be required for a more complicated matter.  This is likely to involve significant legal fees, including those of the Official Solicitor to represent the donor and can easily be IRO£10,000 and upwards.

 

Lasting Powers of Attorney by contrast, can have restrictions added to them for protection and cost £600+VAT plus the registration fee of £164 (total £884)*.  This cost would cover both financial and health and welfare decisions, so would cover far more than the Deputyship order in all likelihood.

 

At Nash & Co Solicitors, if the LPAs are done for people who have capacity and are not expecting to use them for a while, we will hold onto the original and release it or certified copies of it at the direct request of the donor or with evidence of loss of capacity, if this is the donor’s original instructions, to add an additional layer of protection.

 

There are risks to creating Powers of Attorney and Deputy’s can commit fraud too, although hopefully the Office of the Public Guardian would realise, but this can take a while.

 

Lasting Powers of Attorney are a great tool to allow someone to be taken care of, at a time when they really need help.

 

 

 

 

*current prices for Nash & Co Solicitors