Tag Archives: Care of the elderly

Acting as a Health & Welfare Attorney

1 Jun

Acting as a Health and Welfare Attorney


The first thing to understand about acting as a H&W attorney is that the attorney can only make decisions that the donor lacks capacity to make themselves and that is true for each big or little decision.  So a person may know that they like chocolate but not be able to make a decision about a complex medical procedure, capacity is “time and decision specific”.  This means that the donor may well be making some decisions about their life, but not others.


The next thing to understand is that when acting for someone who is found to lack capacity, the attorney must decide in their best interests.  That’s not just an average person’s best interests who is a bit like them, but in that one individual person’s best interests and to do that, the attorney would need to know something about them.  H&W attorneys are usually family members, so hopefully they do know something about them.


There is also the issue of life sustaining treatment and the donor can choose to allow the attorney to make decisions or not.  If they donor chooses that the attorney cannot make decisions, then whilst there might and should be consultation with those closest to the donor by the health care professionals looking after the donor, the final decision maker about life sustaining treatment is the health care professionals.  If the family disagree with that decision their only recourse is an application to the Court of Protection, which can be expensive, time consuming and very emotive for family members.


If the donor allows the attorney to make decisions about life sustaining treatment, then their decision is binding on the health care professionals, in the same way that the capacitated donor’s decision would be.


So apart from life sustaining treatment, what other decisions can the attorney make?  In short – any medical or social care decisions, which would include decisions about treatment, including medication and surgery.  Social care decisions such as what to wear, what to eat and who visits you.  Importantly where to live, which includes whether someone goes into care and if so, which care home they go into.


They attorney can request a particular kind of treatment, but it will only be offered if it is clinically appropriate, this is the same as if the donor was capacitated.  The attorney cannot demand the treatment.  The attorney can refuse clinically appropriate treatment, in the same way that the capacitated donor could, which includes things like discharging from hospital against medical advice.  However, the place that the attorney is taking the donor needs to be in that person’s best interests and if the health care professionals believe that the attorney’s decision is too risky, then instigate an application to the Court of Protection to have the attorney removed.


People take risks, people make unwise decisions, this is normal and happens all the time and people with a cognitive impairment should also be able to do, as far as possible, what everyone else can do.  The issue becomes the balance between the unwise choice of the attorney honouring the preferences of the donor and the risk that this will incur.


Acting for someone when they are unwell is always hard emotionally on those that must make those decisions and care for them.  And making decisions about life sustaining treatment is particularly hard.  For any attorney who needs help, please contact me, I would be happy to support you in this role.



Dementia & GPS trackers

26 Feb

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GPS trackers & Dementia


Following the recent Plymouth Dementia Conference, part of what I was discussing was the advice regarding the Human Rights aspects of people with a dementia wearing a GPS tracker.


So below is a link to the advice that I have written, following consultation with a Senior Judge from the Court of Protection, a Human Rights Lecturer and a Scottish Lawyer.  Thank you to them all.




I hope that you find it interesting.

Dementia & Human Rights – My Speech

11 Feb

Dementia Conference


I was very pleased to be asked to speak at the 4th Dementia Conference in Plymouth and as I went on at 10am, I spoke in front of a pretty full audience, which was both thrilling and nerve wracking!  My speech was well received and I have had lots of positive comments afterwards, which were incredibly kind.


As there was a lot of interest in my speech, I have published it, see the link below for the full text:




Nash & Co had a stand at the Conference and I had a brilliant day there, I met some old friends that I have met many times before and hopefully made some new ones, so that we can all work together to help people to live better with dementia.


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Court of Protection Cases – Part 12

5 Feb

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Court of Protection – Part 12


For the last couple of weeks I have discussed a recent training course I went on presented by Senior Judge Denzil Lush, who presides over many of the cases about financial abuse and as a result many of the cases that I have discussed in earlier blogs.


He talked about some of the cases that I discussed and about the Court of Protection in general.  He had some statistics from the Court of Protection and the OPG.  In 2009 there were 17,068 applications issued and in 2013 there were 24,923.  He also said that 94.5% of cases are non controversial and are dealt with on the papers alone, with only 5.5% of cases being dealt with by an attended hearing.


The OPG had received an increasing number of LPA applications and as it has not been possible to create a new EPA since 2007, the numbers of these being registered is decreasing.  So in 2012/13 there were 242,000 applications for LPA and in 2013/14 295,000 an increase of 22% (in one year alone!).  The numbers of applications to register EPA was 18,000 in 2012/13 decreasing to 16,000 in 2013/14, however this is an overall increase in the workload of the OPG of 20% in one year alone and this increase is not likely to slow with the aging population.


In 2008/9 the OPG were supervising 15.935 deputies and in 2013/14 they were supervising 49,006, more than treble what is was before the introduction of the Mental Capacity Act and this increase in caseload is likely to continue.


The OPG when they supervise Panel Deputies (who are the Deputies appointed by the Court where there is no-one else to take on the case) they would historically look at each of the cases in turn, but the supervision now is more holistically overall the entire caseload of the deputy.


Senior Judge Denzil Lush also said that many of the cases that he presides over are not cases where the deputy or attorney has intentionally stolen from the patient, but often where they are incompetent.  A deputy is required to file accounts with the OPG annually and if they have not done so for 3 years, it does not necessarily indicate that they have stolen anything, but they are simply not doing the job as deputy to the standard that is expected and therefore these deputies have their appointments revoked.


So the message that I learnt from this is that there is going to be more and more cases going to the Court of Protection and many of us are going to be dealing with it, either in a personal capacity when a loved one develops dementia or for me professionally I will be assisting more families through the process of dealing with the Court of Protection.

Court of Protection Cases – Part 11

29 Jan

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Court of Protection – Part 11


Last week I discussed a training course that I went to presented by Senior Judge Denzil Lush and what he had talked about, as he has made the decisions on many of the cases that I have discussed in earlier blogs.


What else did he say?  He had a discussion about the statistics of the Court of Protection and the work that they do.  He said that the cases tend to be split into 3 different kinds of cases: dementia, young men with brain injuries and the learning disabled.  With the increase in the aging population and the aging of the baby boomers after WW2, there is a “bulge” in this age demographic and the increase in people with dementia is likely to continue for some years yet, then once those baby boomers are mostly gone, the increase in numbers should slow.  Time will tell if this prediction is right.


So why are there so many young men with brain injuries?  The answer is relatively simple, they have driving accidents!  They are statistically the highest insurance risk and therefore historically had the highest premiums, until the law changed to end the gender bias.  Just because their insurance premiums may have lowered slightly does not alter the statistics that young men in their early 20s are much more likely than any other group to have a car accident.  This group in the Court of Protection are those that have had a catastrophic brain injury, as opposed to a physical injury.  These people can often live for extended periods of time, so anyone looking after their affairs may have to do this for a long time, possibly even decades.


Of the group of learning disabled people, Senior Judge Lush specifically mentioned autistic people.  He said that when an application for a welfare deputy order is submitted it is almost always refused, as s.5 Mental Capacity Act (that medical professionals can make a decision in the best interests of the patient) generally works quite well, so there is no need for a welfare deputy order.  However where they are granted it is often for a young autistic person, but almost always for a young person, where there is years of treatment ahead and lots of decisions to be made.  Only 1.4% of all deputies are welfare deputies, which should put into perspective how many cases are refused, the result of which, not many people make an application.


Senior Judge Lush said that the average “life” of a case is 3.5 years and this relates to the huge numbers of dementia cases, as dementia is a terminal condition, which by the time someone living with dementia loses the ability to manage their affairs, they have a limited life expectancy.



Court of Protection Cases – Part 10

22 Jan

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Court of Protection – Part 10


I went to a training course recently presented by Senior Judge Denzil Lush, it is always interesting to hear from the “horses mouth” so to speak.  Senior Judge Lush presides over many of the cases that I have discussed and is therefore put into the sometimes difficult position of making the judgements.  So what did he have to say?


He talked through some of the cases that I have already discussed in earlier blogs.  He made the point that the Court will try hard to accommodate claimants and defendants, but in one case where the defendant kept trying to have the hearing postponed the Court gave up and heard the case in her absence.  In this particular case they had asked for information from her and she had been continually evasive.  He pointed out that she was entitled to her Article 6 Rights under the European Convention of Human Rights (Right to a Fair Trial), but after so much delay, so was the patient (the person with a cognitive impairment that the case was about) and too much delay denied the patient of their Article 6 Rights.  This was the case about financial abuse by an attorney and the attorney did not want to have to answer to the Court for their actions.  The hearing went ahead and the Court removed the attorney and had an alternative appointed to act for the patient.


Senior Judge also talked about another case where the family had made veiled threats not to visit the patient, if they were removed as attorney, as they would not be “able to face them”!  He said that the Court does not look favourably on these kinds of threats at all and even if the disgraced attorney is the only person who visits the patient, the Court will still not concede to this threat and consider it in the best interests of the patient.


He said that historically there used to be some investment codes and the Office of the Public Guardian are looking into creating some guidance for attorneys and deputies on investing, to help when the attorneys don’t understand their duties.


There is a phrase in the Courts, which is a concept of “clean hands”, the Court will look far more favourably on a party that has clean hands, ie someone who hasn’t stolen money or made gifts of the patients estate, where they co-operate with the OPG when information is requested and where if they want to make gifts, they make an application to the Court for approval.


So the message of Senior Judge Lush would be to be cautious, helpful, co-operative and always put the patient first, before the needs of the attorney where there is a conflict.  It is probably good advice about how we should live our lives in general!


Court of Protection Cases – Part 9

15 Jan

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Court of Protection – Part 9


The next case I want to look at is the case of Re OB: Public Guardian v AW & DH [2014] EWCOP B28.


This case concerns a lady OB, she was a retired nurse and had been widowed in 1987.  She had 2 daughters AW and DH.  She sold her house for £390,000 (£376,200 net).


She went to see a solicitor with whom she created a Lasting Power of Attorney for Property and Financial Affairs in 2008 and she appointed both of her daughters as her joint and several attorneys.


She then became increasingly frail and began to lose her memory.  However memory loss can often be a gradual process and it was in this case, so in the beginning, OB would have had a better understanding of the situation than at the latter stages of this case.


OB decided to move in with her daughter AW and her daughter as attorney, arranged for some adaptations to her own home in order to accommodate her mother and to care for her.  This required AW to give up her own job as a nurse to care for her mother.  There was an estimate that a reasonable sum that could have been spent on the adaptations was £80,000, but the sum spent was £183,219.  DH complained about the expenditure and the OPG instigated an investigation, including sending a visitor to meet with OB and discuss the situation with her.


OB understood that she lived with her daughter and that her daughter cared for her.  She also indicated that she had agreed to some funding for her living expenses, but she thought that her major expenditure was managed and approved by her solicitor, so clearly did not believe that her daughter managed it for her.


There was a poor relationship between the 2 daughters, as AW believed that her sister should visit her mother and help with the care, by providing respite hours and holiday care for her mother, which she did not do, nor did she provide support with managing her financial affairs.


AW defended the case, indicating that in the earlier stages of her mother’s decline she had agreed to the spending and that her sister was only concerned about her own inheritance.  She did ask though that if the LPA was to be revoked that the Local Council were not appointed and that a Panel Deputy was appointed instead, as there was a poor relationship between her and the Council and she did not have faith that they would do a sufficiently good job.


So what did the Court do?  They revoked the appointment of AW in the LPA and asked that DH disclaim, so that a Panel Deputy could be appointed, who could then investigate into the matter and take appropriate steps to preserve the estate for OB.  They did also make the comment that they at no time questioned the care that was provided to OB by her daughter AW.  They did interesting comment on abuse by saying “One of the surest signs of undue influence is controlling another person’s environment and social interactions by isolating and excluding them from outside supervision and advisers”, which AW had done in relation to her mother, including arranging different solicitors to make a Will and different again to sell the house than the solicitor that drafted the LPA in the first place, so OB had no consistent advisor.