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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 dad has vascular dementia he is 84 years old. Firstly,

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My dad has vascular dementia he is 84 years old. Firstly, after being admitted to hospital for a blood disorder, he fell while in hospital and broke his hip. We were told that the operation would be carried out under a Local Anaesthetic and epidural to fix his hip and not a general as this would have a detrimental effect on his dementia. However the hospital did a general anaesthetic and the effect has been severe. We have not been told why. Should we be able to have this information?

Secondly on leaving hospital, as my parents have savings, we were told that social services would provide no care and I was given a list of care agencies and told to organise matters myself which I have done. However, an OT and physio arrived at the house last week unannounced to assess whether my dad should have bars fitted to his hospital bed (which was provided by the state) as he falls out. The bed is upstairs in a room of more than sufficient size (large double room). During their visit they stated that my dad should not be upstairs and the bed should be moved (only room available downstairs is the living room and therefore this is really not appropriate for my mums quality of life) The OT and physio also told my mum that she should sleep on the sofa or move her bed downstairs. They apparently came to this conclusion as they thought that my dad should have a hoist which for health and safety reasons they do not like to carry upstairs. They upset my mum greatly with their attitude and when they left she was in tears. My dads carers will confirm this. I have since received a phone call from them asking if I have Power of Attorney for my dad which I do, but only in a financial capacity. I have not heard until yesterday of the mental capacity part. After reading several frightening stories in the press of dementia patients forced into care homes, I am now wondering what actual rights they have to demand anything. The lady told me that the decision regarding the hoist was made on a "best interest decision" based on their assessment. They were in the house for 15 minutes and have never met my dad before. Granted on the day of their visit (approx time 8.30am) my dad was asleep and was having a bad day and having difficulty moving from bed to chair. However since that time, he has been moving easily from bed to chair and I have taken him downstairs everyday. We also asked whether we could have a wheelchair for downstairs as this is easier to move him around but were told no as it would be dangerous for him. A friend has since lent us a chair which he uses daily. I am sorry to be so long-winded but wanted to explain fully. My question is what rights do these people have over my dad. I am in contact with his GP on a weekly basis who is more than happy with the care my dad is receiving. I am waiting for a call back from him to discuss this but unfortunately he is out until tomorrow. I look forward to hearing from you. Regards XXXXX XXXXX
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 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 :

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?

Customer:

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.

Joshua :

Thank you - from what you say these would be in your view the exception rather than the rule?

Customer:

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.

Customer:

It would be my view, sorry don't understand what you mean with exception rather than the rule

Joshua :

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?

Customer:

No, in my view, he would be able to grasp the concept of a PoA, at certain times of day.

Joshua :

Thank you.

Joshua :

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./

Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

Would you like information on how to do this?

Customer:

Yes please

Joshua :

Certainly...

Joshua :

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

Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

Is there anything above I can clarify for you any further?

Customer:

Thank you for your help.

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

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