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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I HAVE JUST SEPARATED FROM MY PARTNER OF 4 YEARS, THIS SEPARATION

Customer Question

I HAVE JUST SEPARATED FROM MY PARTNER OF 4 YEARS, THIS SEPARATION WAS MOSTLY CAUSED BY HER DAUGHTER ,SHE IS 72 I AM 57, SHE IS EX-PARTNER IS VERY FORGETFUL AND HAS JUST SPENT SOME WEEKS IN HOSPITAL WHERE SHE WAS DIAGNOSED WITH SIGNS OF DEMENTIA AND WAS TRANSFERRED TO A CARE HOME, I KNOW SHE WANTS TO SEE ME BUT HER DAUGHTER WILL NOT ALLOW ME TO SEE HAZEL AND THE DAUGHTER HAS BLOCKED ANY ATTEMPTS I MAKE TO SEE HAZEL,IS THERE ANYTHING I CAN DO SO AS I CAN SEE HAZEL.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask if her daughter has power of attorney for your Hazel please?Have you asked the care home to arrange access? If so what was their response?
Customer: replied 2 years ago.

The daughter does have power of attorney.

The care says it is up to the daughter and what she says goes.

Expert:  Joshua replied 2 years ago.
Thank you. Finally do you know if she has a lasting power of attorney (these were the new type made after 2006) or an enduring power of attorney (the old type)? If an LPA do you know if she has both a health and welfare power or just a financial power? LPAs require two separate documents for health/welfare and financial. If you are not certain that is ok
Customer: replied 2 years ago.

Think she has an enduring power of attorney, her daughter has a financial power ? not sure though and also hazel has been for some years under the local county council care.

Expert:  Joshua replied 2 years ago.
Thank you. the reason I ask the above question is because an enduring power of attorney does not give her daughter the right to make decisions about her care or welfare but is restricted to financial decisions. In order to make decisions about her care and welfare, the daughter would need to have a lasting power of attorney for health and welfare. if she does not have this, then she may have no right to make any decisions with regards ***** ***** care and welfare. Even if she does turn out to have a health and welfare lasting power of attorney, any decision she makes under the same, would still be subject to what follows but if she does not have health and welfare power, then the care home should as a starting point reconsider their position as it is they not the daughter that must make the decision on behalf of Hazel. However regardless of the above the following applies. Restricting your access amounts in law to what is known as a "deprivation of liberty". The courts have held that any of the following can amount to a deprivation of liberty:a patient being restrained in order to admit them to hospitalmedication being given against a person's willstaff having complete control over a patient's care or movements for a long periodstaff making all decisions about a patient, including choices about assessments, treatment and visitorsstaff deciding whether a patient can be released into the care of others or to live elsewherestaff refusing to discharge a person into the care of othersstaff restricting a person's access to their friends or family.Accordingly, if access if being denied to you regardles of whether this is the decision of the care home or based on a decision made by the daughter under a health and welfare LPA the care home would require a deprivation of liberty authorisation in order to impose restrictions on visiting by you. It is unlikely that they will have obtained the same though they may have done. The first step is therefore to contact the care home manager and advise him that the restrictions they propose amount to a legal deprivation of liberty and ask them for a copy of their deprivation of liberty authorisation in this respect. If they cannot provide one, ask the care manager for a meeting in order to discuss how to resolve the position between you in order to avoid formal action on your part. If you are able to resolve the position so as to achieve relaxation of the restrictions they propose and this is an end to the matter - this is often possible when the care home manager appreciates that you are fully appraised of their legal position. If not, then you can contact the local authority and ask them to carry out a deprivation of liberty investigation. the local authority is bound by law to do so. If the local authority finds that the deprivation of liberty has occurred which based upon what you say must be the case based upon decisions by the courts in respect of what circumstances amount to a deprivation of liberty then the care home will be required to apply for a deprivation of liberty authorisation or allow you visiting access. Application for a DOL authorisation is a formal process whereby to independent assessors are appointed - a best interests assessor and a mental-health assessor. Both of them must have appropriate experience and training to undertake this role. They must investigate whether the restrictions proposed are in Hazels best interests. She is entitled to have a representative appointed as well and this would typically be a friend or family member and therefore could be you. Her views will also be very heavily taken into account so if she wants to see you this will be treated very significantly and will play a central role in any decision. On completion of the assessment, a deprivation of liberty order will be made outlining any restrictions that have been found to be appropriate which will replace the restrictions proposed by the care home or alternatively the deprivation of liberty order will be refused in which case the restrictions will be removed and you will be allowed to visit. If you are not satisfied with the outcome of the assessment, you can ask for a review at any time after any deprivation of liberty order is imposed. An independent review is conducted by independent assessors. If you are dissatisfied with the outcome of that review, you can ultimately make an application to the Court of protection whereby a judge will independently review the review and make a new order either confirming the deprivation of liberty order, revising it or ordering it being lifted. Decisions with regards ***** ***** of liberty are taken based on whether any deprivation of liberty can be justified as being in your Hazel's best interests not the care homes or anyone else's best interest. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
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Customer: replied 2 years ago.

your advice was much appreciated, i have sent the daughter a letter which she did not reply to and also i have forwarded a formal letter to the care home asking if i can see hazel but i know they will say i will have to ask daughter again but if she will not reply to me what do i do but go further.

Expert:  Joshua replied 2 years ago.
I am glad the above was of assistance. If the care home does not allow you access then as you say you have little choice but to proceed with the above deprivation of liberty steps to gain access.