How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

Good morning, I have a sister in Care with No Mental Capacity.

Resolved Question:

Good morning,
I have a sister in Care with No Mental Capacity. He husband died November of last year. My sisters stepson is refusing to allow or discuss having my sister moved to a care home much nearer to me and also to himself and 3 siblings. I am my sisters only able next of kin. She has never had children of ther own. Where does the law stand on an issue such as this, does he have any legal rights? He is not registered as a Deputy. He and his 3 siblings have never lived with their late father and my sister at their family home, so my sister has never been regarded as their mother. £40.00 for answer if possible
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 clarify that her step son also has no power of attorney over her please?
Is your sister living in his home?
Finally do you know if any assessments have been carried out for your sister to assess her needs?
Customer: replied 2 years ago.

Good Morning,

there is no power of attorney as that died when her husband died, as she has no mental capacity and has been assessed, a new power of attorney cannot be made. I am hoping to apply to the court to become a Deputy and I have invited her stepson to become one with me, but he does not acknoledge any request. She is living in a care/nursing home, which is 172 miles in each direction from the stepson and his siblings and none of them have visited for 10 weeks. I visit every two. It is 72 miles from my home in each direction, and the Care home that I have looked at is only 20 minutes from my home and other blood family members.

Expert:  Joshua replied 2 years ago.
I am very grateful for the above information. May I clarify your above comment that her step son is refusing to allow access. How is this so if your sister is living in a care home. Has he instructed them not to allow you access?
Customer: replied 2 years ago.

He is not refusing access he is refusing to allow her to be moved from that home, to one nearer to all of us and that I can vit twice weekly to mon itor her care. He does not talk to me he just phoned the home which was several months ago and told them No and they are listening to him rather than me.

Expert:  Joshua replied 2 years ago.
Thank you for the clarification. Finally do you know how your sister is funded? Is she self funding or council funded? Does her step son have access to the money? If so do you know on what basis?
Customer: replied 2 years ago.

She is on Continuing Care, which I believe is paid by the Health Authority, and apprently can be transferred to another Count, she is in Caldecott in Wales and I am in Wiltshire the step siblings are mostly in Essex. The stepson has control of her bank I believe and definately her Pension, which can only be transferred if he agrees. But since I have been kept out of the picture in all things I have no way of knowing anything else. But , currently my main direction is her health and welfare, as I have concerns about her care at the current home and I have forced a meeting with thm for next saturday, but they will only discuss the care home issues and not my application to have my sister moved, the home that I have looked at at has been approved. I am going down the road of not acting in her best interest

Expert:  Joshua replied 2 years ago.
Thank you. based upon what you say, her stepson may have been appointed receiver for her pension which is a little bit like a very limited appointment as deputy but only in respect of her pension income. It does not give any further rights in respect of any other assets or accounts. If your system does not have mental capacity, if he is continuing to manage her bank account separately to her pension, this would be unlawful as any earlier agreement by your sister them to do so does not continue if your system uses mental capacity.If your sister is funded by the local authority, you may consider discussing with them a potential transfer on the basis that your sister is not visited often by family in her current location and had to an alternative location would facilitate more visits from friends and family. if the local authority funding her, in the absence of anyone holding power deputy for your sister, it is they that can make a decision in this respect though they will usually take into account the views of close family members which would include her stepson as well as your own. Accordingly, if there are any other family members who have views on the subject, it may be sensible to sound them out as well in order that they can give their own opinions in this respect.If you decide you wish to take a further step with regards ***** ***** sister's affairs, you can consider as you suggest, applying for deputyship through the Court of protection. The forms and instructions on how to do so can be found here:https://www.gov.uk/become-deputy/apply-deputythere is a £400 application fee to pay unless your sister is on means tested benefits in which case you can apply for an exemption remission for the fee. If her stepson objects to your application, and the court decides to have a hearing, there is an additional £500 fee for the hearing. In many cases, you can apply to recover the fees from your sisters funds. the legal position as things stand, where no one holds power of attorney or deputyship, is that neither you nor your sister stepson have any legal right to make decisions on your sister's behalf. Rather, decisions are made on behalf of your sister by the care home and social services and doctors on what are known as best interests bases under the mental capacity act. The mental capacity act provides that where no person holds power of attorney or deputyship, decisions can be made by the above parties on the basis that those decisions are objectively in the best interests of your sister. Those passes can take into account the views of family members and will often give greater weight to close family members and more distant relatives but ultimately do not have two do what many relatives say. The only duty is to take into account their views. accordingly, you can provide your own input just as her stepson is presently doing and it is up to the care home, social services and her doctors as to what if anything to do. Her step son has no veto or any better right than you though his opinion will carry weight as her stepson just as yours will as her sister. if you are successful in your application for deputyship, then you will have a legal right to make decisions on behalf of your sister which would override any non deputy though if your sister is funded by the local authority, you will still need to work with local authority in respect of funding issues.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 I'd be very grateful
Joshua and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Dear *****,

thank you very much for all the information, it will be of great help to all of us ultimately to the benefit of my sister.

Kind regards

Laura

Expert:  Joshua replied 2 years ago.
I am glad it was of some assistancce. I hope you are able to resolve the matter without a formal application for deputyship but if you find it necessary it hope tha application goes well. if you do decide to apply for deputyship, it is best to proceed on the assumption that stepson reject your application and therefore if you can line up other family members to support your application this will be very helpful. It may not be necesary but it is generally best I find to hope for the best and plan for the worst.Best wishes