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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My aunt (86) suffers from Demantia and is currently being cared

Resolved Question:

My aunt (86) suffers from Demantia and is currently being cared for, at home, by a care company. Yesterday the carers reported that they observed my uncle (94) strike his wife in retaliation for her lashing out at him. My personal view is that he probably did this whilst attempting to get her to comply with the carers instructions though that is no excuse on his part. following that incident, the local social services arrived at the door supported by the police who appeared intent on arresting a 94 year old. The social worker stated that she required a carer to stay in the house 24/7 to monitor the situation whilst she made up her mind. The social worker has classed my aunt as a VP and insists that she has the powers to remove her to a place of safety without any visiting privelages for her husband who she has been married to for 60 plus years. My uncle is unclear as to where he stand in law and to whom he should seek legal advice from. Your comments are most welcome. Alan (Nephew)
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Does your uncle admit the allegation please?

Joshua :

Does anyone hold power of attorney for your aunt and if so is it registered?

Customer:

To the social worker my uncle replied, they are not telling the truth and the social worker replied that she had reports from two independent witnesses ie, the two carers who work together.

Customer:

No power of attorney is held as my uncle considers this as me "taking control"

Joshua :

Thanks. So for the avoidance of doubt your uncle is disputing their version of events and denies striking your aunt? I correct in assuming there is no physical evidence that you aren't has been struck such as a bruise for example?

Joshua :

regarding your last post, is your uncle happy for you to be involved or are you saying that he thinks you are trying to take over?

Customer:

No physical evidence and I doubt that the actual accusation will be acted upon, in law, as an assault. As social services are involved, they appear to be in a position to make all the decisions without any concern for the husband; their main line of threat is that she is considered to be a VP and they can remove her from the home. Such an action would have a drastic effect on both parties given that they have lived hand in hand for so long.

Customer:

My uncle is happy for me to get involved and, although he is a very private man, he is aware of his limitations when it comes to obtaining advice. He is aware of the action I have taken.

Joshua :

thank you. The starting point is that social services do have powers to remove individuals they considered to be at risk where they can demonstrate on the balance of probability that their failure to act may expose an individual to unacceptable risks within the home. Such powers can be challenged in the County court if social services do exercise them where it would be necessary for the applicant to demonstrate that the removal is not justified as social services have not shown on the balance of probability that there is a risk to your aunt. Obviously in this case, they have not yet exercised such powers and at present, focus should therefore be considered in respect of persuading them not to do so rather than any court action as at present, there is nothing over which to take court action unless you were to seek a pre-emptive injunction against the local authority to prevent them from exercising their above powers on the present facts.

Joshua :

against your uncle from what you say, there is claimed statements from two independent individuals who claimed to have seen him strike your aunt. In his favour is presumably no history of violence to your aunt, no evidence of injury to your aunt and your uncle's own denial

Joshua :

I presume your uncle has not admitted the allegations to any third party particularly the police. On the basis that there is no injury to your aunt and that the above is the case, I suspect any form of criminal prosecution is unlikely as the police would need to prove beyond reasonable doubt that your uncle did as is claimed which is a much higher standard of proof and in addition to this, if your uncle is 94 years old, the police will be unlikely to be overly keen in seeking a prosecution unless they feel it is entirely necessary and justified

Joshua :

because no one holds power of attorney for your answer, no one can make decisions on her behalf legally including her husband. Rather, all that can be done our best interests decisions on her behalf as provided for by a piece of legislation called the mental capacity act. Under the act, local authority and clinicians must make decisions which they considered to be in the best interests of your aunt and must take into account wishes of close relatives but ultimately are not bound by those wishes. It is possible for you to consider applying for deputy ship for your aunt. This is a similar arrangement to a power of attorney but the power is appointed by a court rather than your aunt. the deputy ship order gives you the legal right to make decisions on behalf of your aunt as if those decisions are made directly by her. This places you in a significantly better position with organisations such as social services however there are costs of at least £500 associated with applying for deputy ship and the process can take two months or more

Joshua :

notwithstanding consideration with regards XXXXX XXXXX at present, it is likely that the best initial approach is to meet with the relevant social worker to discuss all the circumstances calmly either with or without your uncle as social services consider appropriate and persuade them of the benefits of the status quo. As above, there are a number of court applications available to you either pre-emptively or after the event however one cannot ignore the costs of court applications vis-a-vis the local authority and as such, such applications would be best avoided if at all possible

Joshua :

if you find yourself or more to the point your uncle finds itself in a position where he is forced to consider a court application, he will need to consider appointing a local solicitor to assist him with the same. You may consider using the following directory to source a solicitor with relevant skills locally:

Joshua :

http://www.solicitorsfortheelderly.com/public/search

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

My thanks

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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