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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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I have lasting power of attorney for my partner of 17 years

Resolved Question:

I have lasting power of attorney for my partner of 17 years who has severe dementia and has been in a care home near me since Feb 2013. I asked for a specialist to see him recently, as he retained drink and food in his mouth at times for several minutes. He was assessed by a speech and language therapist who insists that he has to be on a puree diet only. He enjoys chewing on solid food and I know it gives him pleasure.

What are my rights in relation to the Mental Capacity Act 2005, the Code of Practice and the Lasting Power of Attorney?
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 :

Do you hold a personal welfare power of attorney please - I note you don't mention which kind(s) of LPA you hold for your partner? If so is it registered?

Joshua :

Has the therapist declared it is dangerous for him to have solid food or just that she thinks pureed food would be better?

Joshua :

If you do hold a PW LPA, are there and restrictions in the power made by your partner?

Customer:

Hi,

Customer:

I hold registered Lasting Powers of Attorney for both health & welfare and finance & property. There are no restrictions in the LPA for health and welfare. The therapist said she is concerned about his safety on a regular diet. When I questioned her that he would have a risk of aspirating or choking with pureed food as well, she agreed but said it was a lower risk.

Customer:

I have been feeding him a regular diet at dinner time almost every day for the last 15 months at the care home and he has never aspirated or choked on food. Yes, he coughs out some drink/food sometimes to clear his throat when he has kept the food in his mouth for several minutes.

Joshua :

Thanks. Has she actually confirmed he would be in danger if feed solid food or just raised some concerns?

Customer:

She has instructed the care home that he has to be on a puree diet and that they have to comply. I have not received her report yet.

Customer:

Otherwise, it will become a safeguarding issue and they have to raise an alert with social services. I have kept social services fully informed.

Joshua :

Thanks. As you will be aware as PoA you stand in your partners shoes and your instructions are given as if they are given by your partner personally. However you must act in your partners best interests. You can countermand the therapist instructions, but should be cautious in doing so because you have been given notice by a professional of concerns and this coudl expose you to claims that you are putting your partner in danger - claims as you know do not have to be proven to be made.

Joshua :

Accordingly if you disagree with the therapists views, consider requesting a doctor to attend to provide a report on the eating of solid food. if they disagree with the therapost then this would give you a sound basis on which to proceed. Your partners GP would be the obvious starting point though they may wish to refer the matter to a specialist which may be how you ended up with the therapist in question, in which case you could request a second opinion.

Joshua :

If a second opinion agrees with the therapist, then you will despite your contrary opinion obviously have to give consideration that they may be correct and respect their position unless you wish to look at further investigation, which may need to be paid for privately. If on the other hand a second opinion supports your view then you would be on relatively safe ground in countermanding the therapists instructions under your powers.

Customer:

Thanks. XXXXX is sticking to the therapist's recommendations. I have filed a complaint about him (to the practice manager, to NHS England to the GMC) as he has not been consulting me or keeping me informed about my partner's care and treatment despite my written requests, and also for my concerns about his competence. He also told me my being his partner and attorney are irrelevant to the decision! However, I have spoken to my partner's psychiatrist and he has agreed to review my partner in the coming weeks in my presence.

Joshua :

Thanks. This is not correct. The LPA gives you the right to make decisions as if you were your partner and your instructions can no more be ignored than if your partner were able to give them himself unless it can be shown that your instructions were dangerous in which case the care home would need to seek a court order to overule them

Joshua :

However unlike if your partner were giving the instructions, you have duties under the MCA to act in his best interests as above and so it would be dangerous potentially for you personally to act contrary to two medical professionals advice despite your technical legal ability to do so without obtaining a contrary opinion. If you can afford to pay a private physician for a second opinion then this should be straightforward enough to obtain failing which you may need to pursue matters through your GP and if necessary a complaints process as you are doing.

Joshua :

Is there anything above I can clarify for you?

Customer:

Thanks. I understand the care home have to follow the decision of the GP/therapist at least until my partner is reviewed by the psychiatrist. However, does this restrict my right to give him regular food when I visit him at the care home every evening?

Customer:

I will also consider getting another speech and language therapist to assess him privately.

Joshua :

That is up to you. You have a legal right to as his attorney but if anything were to happen medically as a direct result, this could put you at risk if you ignore medical advice not to give him food. For your own protection it would be better to wait until you obtain a further medical opinion but if you are confident to ignore the opinion you have receive you have a legal right to feed him as you propose.

Joshua :

Is there anything else I can help you with?

Customer:

Thank you. XXXXX wish to engage a lawyer to assist and advice me, can you tell me what sort of fee I am looking at?

Joshua :

At this point you should not need a lawyer but if you were to need on in the future most solicitors would charge between £150-225 per hour for this sort of work. You should be able to charge solicitors fees to your partner rather than your own funds in the circumstances.

Joshua :

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

Customer:

Just one more question. Does my LPA give me the power to decide which health professionals and others such as opticians, etc can see Anders and when? The care home has been allowing health professionals unknown to me to visit my partner without my consent and without my knowledge. Of course, I understand it is different in the event of an emergency.

Joshua :

Yes quite so on a routine basis. As you say in acute situations the care home may have to legitimately make decisions on the spot.

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

Customer:

I am happy with the information you have provided. Thank you.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

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

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