Tag Archives: Court of Protection

Lasting Powers of attorney – practical issues – Property and Financial Affairs

15 Feb

Lasting Powers of Attorney – some practical issues

 

There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the financial one works.

 

It can work, if you are well, but have a physical impairment and cannot get to the bank to deal with your financial affairs, at this time, your attorneys should act on your instructions only.  They are effectively doing your running around.

 

If and when you ever lose capacity, your attorney will act for you, but they make your decisions, so it is important that you trust them.

 

Unless restricted, the LPA will cover everything you own, which includes all those lovely sentimental things that you own, as well as your cash and house.  Make sure your attorney knows your intentions for all of it, the sentimental stuff is where people often row!

 

So what if you don’t have an LPA, well if you can’t get to your money, then unless you’ve made arrangements no-one can, so your bills won’t get paid.  If you live at home, your repairs or new equipment can’t be purchased, which will impair your ability to successfully live at home.  If you are in a care home, then your fees won’t get paid and the home will not want you there.  Often the Local Authority will step in on an interim basis to meet your fees in the short term, but they will want reimbursement and if necessary will take on deputyship themselves (which is like a power of attorney, but granted by the Court of Protection), which is a far more expensive option.

 

So what can your attorney do with your money?  It is meant to be used for your benefit, so making modest gifts probably is for your benefit, if you have always made them, you could appear ungenerous if you stopped giving Christmas and birthday presents.  However the power to make gifts is very limited, it must be “on occasion”, such as birthday, Christmas, wedding etc and it must be reasonable in all the circumstances, including the size of the estate, which means that the attorney cannot give themselves thousands of pounds just because they fancy it! Or at least they shouldn’t, which is why you should trust your attorneys.

 

They can spend the money on you, on your needs, to ensure that you are housed, clothed, fed and cared for.  And beyond these basic needs, depending on how much money you have, they may also buy for you some luxuries that you like, such as a holiday, if you are capable of travel.  Whatever they spend your money on, it should be with you in mind, not just what a generic person like you would want.  Some people love chocolate, others are allergic, so whatever your guilty pleasure is, if you have enough money for it and there is no clinical reason why you can’t have it, your attorney should purchase this for you!

 

If you have any questions about LPAs, please contact me.

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Withdrawal of Life Sustaining Treatment

4 Jan

 

Withdrawal of Life Sustaining Treatment

 

There have been a couple of cases coming to Court recently regarding the withdrawal of life sustaining treatment.  Court cases are always stressful and can be very expensive, so in recent cases, the question has been asked as to whether it is necessary to go to Court in every case.  These kinds of cases arise where there is no attorney under a Lasting Power of Attorney, appointed to make decisions about life sustaining treatment.

 

There is practise direction (legal guidance for the Court process), that indicates that it should, however this practise direction is being withdrawn in December and not replaced, which effectively means it’s being deleted!

 

The Court considered lots of things and made it clear that every decision to withdraw life sustaining treatment is always unique and case specific.  They also said that every person is entitled to the rights under the European Human Rights Convention and in particular they are entitled to Article 2 (right to life) and Article 6 (right to a fair trial).

 

One of the first cases of its kind was the case of Anthony Bland, who survived the Hillsborough disaster, but in a permanently vegetative state.  The NHS Trust caring for him applied to the Court for permission to withdraw life sustaining treatment in 1993, the order was granted, as it was decided in the circumstances it was in his best interests to do so.  At that time, the Court’s view was that all such cases should be considered by the Court.  As time has gone on and medical advances have improved, there are more very poorly people being kept artificially alive with the use of medicine and in particular artificial nutrition and hydration.

 

So what has the Court decided?

 

It is still an individual decision relevant to the circumstances of each case.  However the Court has also decided that it is not always necessary to apply to the Court for a decision to withdraw life sustaining treatment where all parties are in agreement, including the family and all clinical team treating the patient.  They must be sure that there is no prospect of recovery and that it is in their best interests to withdraw the treatment.  They should also attempt to find out what their wishes would have been, had they been able to express them.  There should also be no doubts or concerns about the decision, otherwise, the case should be brought to Court.

 

So what does this mean?

 

That life sustaining treatment might be withdrawn without having to go to Court, as long as there are no concerns about the decision and everyone is in agreement.  However these recent cases are not guarantees that the matter will not be brought to Court, just that it might not be!

 

The other key point is that it is best practise, a lot easier and less stressful to grant a Lasting Power of Attorney for Health and Welfare, appointing someone you trust, who would be able to make this decision on your behalf.  One of the cases was for a 52 year old man, who had a cardiac arrest, it was not possible to resuscitate him for 10 minutes, leading to permanent brain damage and he would need care for the rest of his life.  As long as your proposed attorneys are over the age of 18, there is no time when it is too early to do this, then they can be stored until or if they are every needed.

 

If you need help or advice regarding LPAs, please contact me.

Deprivation of Liberty – Part 6

15 Dec

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DOLS – Part 6

 

Following the Cheshire West case in 2014, where the Supreme Court, which is the highest Court in England and Wales, decided that if someone who is cognitively impaired is “under continuous control and supervision”, then they were deprived of their liberty and therefore the deprivation should be authorised.  This implied that it would lead to a huge increase in the numbers of cases for authorisation by both the Local Authority, which should authorise cases in care homes and hospital and the Court of Protection, which should authorise deprivations elsewhere.

 

The final case that I will look at is Re X (Court of Protection).  The president of the Court of Protection wanted to have brought before him a number of different cases, that had similar issues, so that he could answer the questions in one “supercase”!  By the time the Re X case came before the President, even he did not how many individual cases were involved!

 

The president created a list of 25 questions, which he hoped he would answer and in doing so would form the basis for a streamlined process of applications to the Court of Protection.

 

The case was referred to the Court of Appeal.  The Court had concerns about this list of 25 questions and whether the president had the jurisdiction to hear all of these various cases and answer his list of questions.  In the end the Court decided that he did not have jurisdiction.

 

One of the questions that the Court of Protection asked was whether the person being deprived of their liberty should be joined as a party to the case, which means that they would have the right to be heard by the Court, either directly or via some carer / advocate / family member etc.  The Court would always join the person where the matter was controversial, as in these circumstances, the Court would always want to hear from the person, but what about in cases that were not controversial or contested?  The Court of Protection, in looking at a streamlined process decided that they didn’t have to be joined, which meant that they still might be, but didn’t have to be.  The Court of Appeal overruled this and said that they should always be joined, because if someone is being deprived of their liberty, they should be involved.  Being deprived of their liberty is what happens when people are convicted of a criminal offence and sent to prison, so to deprive someone of their liberty when they are cognitively impaired is a huge issue and that person should be involved in the process and hence joined as a party.

 

What has come out of this is a new Court of Protection process, with a new Practise Direction.

 

There have been lots of cases following Cheshire West, and many have found that a person is not deprived of their liberty, but as the Supreme Court is the highest Court, none of these cases have overruled Cheshire West, which therefore stands as case law.

 

The Law Commission is looking at the whole issue of deprivation of liberty and has said that it is “deeply flawed”!  One of the ways in which it is intended to reform it is to change the name to “Protective Care”, which sounds so much more appealing than Deprivation of Liberty!

 

During the process of reform, the Law Commission undertook a consultation process, which is now closed and a final report and draft bill are due to be released in December 2016.

Deprivation of Liberty – Part 5

1 Dec

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DOLS – Part 5

 

There have been a number of cases following the Supreme Court ruling in the Cheshire West case in 2014.  The key phrase that came from this case was the issue of whether someone who was cognitively impaired was under the “continuous control and supervision” of their carers.

 

The next case that I will look at is W City Council v Mrs L, the details of which are:

Mrs L was 93 and had dementia.  She had lived in her house for the last 39 years.  She had 2 falls in 2013, the first time injuring her hip, which required an operation.  Once she became increasingly frail and vulnerable a care package was arranged by the Local Authority.  She continues to live in her own home and gets great pleasure from being able to go out into the garden.

 

The garden was open originally, so work was done to enclose it due to the risk of her wandering off and there are sensors that automatically switch on at night & off in the morning.  If the alarm went off, her daughter would be contacted and if she were unavailable, then the call would re-route to the emergency services, who would guide her safely back.

 

Because Mrs L was living in her own home, this case was considered by the Court of Protection and they had to consider whether she was deprived of her liberty.  The Court considered who was providing the care and who would bring her back if the alarm was triggered, which in first instance was her family.  The Court said with this family involvement the deprivation was not “imputable to the state” and in which case she was not deprived of her liberty.

 

Like many other cases decided after the Cheshire West case, it is arguable that she was under fairly “continuous control and supervision” and although she may be able to leave, she would always have been brought back, so not free to leave completely!

Deprivation of Liberty – Part 4

17 Nov

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DOLS – Part 4

 

I have looked at a number of cases following on from the Cheshire West case as decided by the Supreme Court, which indicated that if someone is under “continuous control and supervision”, and if they are cognitively impaired, then they are deprived of their liberty and such a deprivation should be authorised.

 

It is important to understand that the Court was not indicating that such a deprivation was not in that person’s interests, just that any deprivation should be authorised, as this brought with it consideration of the least restrictive decision and periodic review.

 

There was real concern though that this case would mean that the Local Authority and Court of Protection would be inundated with new cases.

 

The next case to consider is:  KW v Rochdale and the details of the case are:

Katherine 52, She suffered brain damage during surgery, she was left with cognitive and mental health problems, epilepsy and physical disability (when aged 34).

 

She went to rehab & eventually her own home with 24 hour support.  She is just ambulant with a zimmer.  Mentally she was trapped in the past living in her old home with her 3 small children (all of whom are now adult) and has a tendency to wander off to find her small children, when she does she will be brought back.  The carers try to make her life as normal as possible.  Her care is paid for by Rochdale LA & local Clinical Commissioning Group.

 

As Katherine was living in her own home, the matter was considered by the Court of Protection.  Her children were involved in her life, but were not the live in carers.

 

Like the other cases that I have discussed post Cheshire West, it is arguable that she was under “continuous control and supervision”, as she was brought back when she went looking for her children.

 

The Court of Protection decided that a private package of care would be the same and in part for that reason, this was not a deprivation of liberty and to find that it would be was irrational and arbitrary.

 

Deprivation of Liberty – Part 3

3 Nov

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DOLS – Part 3

 

Following the case of Cheshire West by the Supreme Court in respect of Deprivation of Liberty there were a number of other cases.  The key phrase from Cheshire West was whether someone was under “continuous control and supervision”.

 

The case of Ferreria is a sad one, as it was a Coroner’s case following the death of Maria.  The issue was whether she had been deprived of her liberty when she was in hospital during the last few days / weeks of her life.

 

The details of the case are:

Maria 45, at the time of her death.  She had down syndrome, a severe learning disability and limited mobility.  She was living with her sister and required 24 hour care.  She was admitted to hospital with a diagnosis of: Pericarditis, pneumonia and possible pulmonary oedema, which was not directly related to her disability.  She had a strong dislike of hospitals and found the procedures frightening.  Her sister advocated for discharge due to her anxiety but consultant said “we have not really completed all the investigations we would have done if we had a patient who found investigations easier to tolerate”!!  At this point I would raise the issue of that much fated phrase “person centred care”!  Why did the need to follow the process have such a status when considered against the known wishes of someone to be discharged as soon as possible, as Marie found being there so distressing and frightening!

 

Eventually Maria’s condition worsened and she was ventilated.  She had mittens put on her to stop her reaching for the endotracheal tube (normal procedure) & later knocked out the tube as she was only wearing one mitten (there was a shortage of mittens), which was quickly noticed, attempts at resuscitation were made, she went into cardiac arrest and died.

 

Maria was clearly detained / restrained as she had a life threatening condition.  In particular, once she was ventilated, she would die quickly if she was not treated, which meant that she needed to be restrained for that to happen.  This had nothing to do with her condition and was normal practise for anyone who is ventilated, regardless of whether they are cognitively impaired or not.  It is still arguable that she is under “continuous control and supervision”.

 

The Coroner’s inquest was held and the Administrative Court decided that Maria was treated in her “best interests” and this didn’t mean that she was deprived of her liberty, as her treatment didn’t relate to her underlying disability.

Deprivation of Liberty – Part 2

20 Oct

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DOLS – Part 2

 

Once the Supreme Court made the judgement in respect of the Cheshire West case and its implications sank in, there were a number of other cases following that considered the idea of the universality of the deprivation of liberty for people not wanting or trying to leave where they were being cared for.

 

The Cheshire West case did not change the procedure, that any authorisation of a deprivation of liberty should be authorised by either the Local Authority or the Court of Protection, depending on where they are being housed at that time.

 

The key message of Cheshire West, was whether that person was under “continuous supervision and control”!  The issue for people working in this area, is that this description covers lots of people in care environments and therefore implies there should be lots more authorisations.

 

The next case in a series that considered this issue is Bournemouth Borough Council as decided by the Court of Protection.

 

The details of the case are:

Ben 28, Autistic spectrum and learning disabled.  Lived in a 2 bedroomed bungalow & assisted by staff 24hrs.  Was under constant observation and monitoring.  Assisted with all aspects of personal care, he had difficulty with tasks, as he would decline them, and would stay in bed until noon if left.  Had unsupervised access to all parts of the house, except the kitchen when staff were cooking.  Although he had never tried to leave without staff, there were sensors which would alert staff if Ben tried to leave, at which time, staff would attempt to engage him and monitor him.  If he refused to return they had an escalation plan that ultimately culminated in ringing the police.  His wishes fluctuated between returning to hospital, as everything was done for him or to live with his mother, with whom he had supervised contact once a month.

 

The Court decided that he was afforded “appreciable privacy” & could leave the home, although attempts would be made to bring him back and there was a multi stage process for if that ever happened, although he had never tried to leave.

 

It is arguable that he was under fairly “continuous control and supervision” and yet the Court decided that he was not deprived of his liberty and in which case, no authorisation is required.