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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.
May I confirm please from what you say that your mother has mental capacity and that it is just your father that lacks capacity please? Does he have any significant mental capacity remaining in your view?
My mother is fine and cares for my father. She is 12 years younger and is fit and mentally sound. There are times, in my view, when my dad does has mental capacity.
Thank you - from what you say these would be in your view the exception rather than the rule?
My mother is fine, she is 12 years younger than my dad and is mentally sound and physically fit. There are times when I feel my father has significant mental capacity.
It would be my view, sorry don't understand what you mean with exception rather than the rule
Thanks. To clarify people with your fathers condition in terms of capacity will not necessarily be a one way street in that once he has lost capacity that is it. Typically they will have periods of lucidity but these periods can reduce both in frequency and capacity over time. Would I be correct to conclude that your father would unlikely be able to grasp the concept of a power of attorney at this stage in your view?
No, in my view, he would be able to grasp the concept of a PoA, at certain times of day.
If no power of attorney for H&W has been granted then decisions in relation to your fathers care must be made by third parties on a "best interests" basis under the Mental Capacity Act. The local authority despite what the hospital has told you has a statutory responsibility to ensure your fathers adequate care. If your parents have assets of their own they can look to them to pay for the costs of that care but they nevertheless have obligations towards him to ensure minimum care standards. Your mother and family can of course arrange for your fathers care privately and this will satisfy the local authority providing that private care mets their minimum required standards in order to discharge their obligations to your father./
Best interests decisions can be made on the basis of input from family and professionals. If you disagree with decisions being made you can challenge them if necessary through the Court of Protection. Because you do not hold a H&W POA you cannot directly refuse consent on behalf of your father in the face of a decision that you disagree with. The views of your mother should be given particular weight in respect of best interests decisions.
If you wish to cement your rights in respect of your father, whilst unfortunately it is now too late to have him grant you POA for H&W if he no longer has capacity it is possible for you or your mother to apply for deputyship for health and welfare matters. This is similar to a POA but rather is granted by a court.
The application fee is £500 which obviously is not cheap but it can be a way of taking more control over your fathers care if you are troubed by some of the decisions being made on his behalf.
Would you like information on how to do this?
These are the application forms and guidance in order to apply to become your fathers deputy:http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2899
Many people will choose to appoint a solicitor to assist them with the application as it is not entirely user friendly but it is possible to do it yourself if you take the time to read the instructions and guidance carefully and have the time to do this.
The court will grant the application if it believes it is in your fathers best interests to do so which would be typical providing there is no evidence of abuse or breakdown in relationships in the family.
If you or your mother are granted deputyship you can then make decisions under the same on behalf of your father which are binding on third parties providing they are not illegal - i.e. where your fathers health is at risk in the opinion of a doctor at home but you insist that he may not go to hospital - this is unlikely to apply providing decisions are reasonable.
Is there anything above I can clarify for you any further?
Thank you for your help.
A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.