Expert Event with Kirsty Stuart from Irwin Mitchell... - Mencap

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Expert Event with Kirsty Stuart from Irwin Mitchell (6 - 10 February)

This expert event is now closed, but please do read through Kirsty's fantastic posts for advice and information on a range of subjects.

Hello everyone,

Lately we've noticed a few posts on subjects like deputyships and mental capacity, which are asking some really big questions.

So we've invited KirstyStuart a public law and human rights associate solicitor from Irwin Mitchell, to take part in an Ask the Expert event.

Kirsty is with us this week, from Monday 6 February until Friday 10 February, so if you have a question about community care, mental capacity, or other related issues, please make sure you post in this thread.

Kirsty has introduced herself and outline her areas of expertise here; healthunlocked.com/mencap/p...

It's been a little while since an expert event on the forum, so if you have any questions about it please let me know here! 🙂

Written by

Maurice_Mencap

Partner

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37 Replies

•

BeatriceH2 years ago

I'd like to know if it's worth getting Power of Attorney for my 19-year-old disabled son. I understand that as his main carer, I should always be involved in Best Interest decisions about his care if he's deemed to lack mental capacity. But if another professional disagrees then my opinion can be overridden.

If I had LPA, then it's possible that my opinion could still be overridden - is that correct? And if so, what is the point of the effort and cost of getting LPA?

As an example, I disagreed with the choice made about his post-school education and his social worker made a last-minute BI decision as she said my son lacked capacity. If I had had LPA, this would not have made any difference surely?

49Twister• in reply toBeatriceH2 years ago

From what I understand you can only apply for an LPA if your son has capacity and agrees for you to be his LPA which gives you the power to act on his behalf if he loses capacity in the future.

They work the same as if you or I appoint someone to be an LPA before we lose capacity, ie dementia. An LPA is only useful if the person has capacity to begin with but then loses capacity for whatever reason. Deputyship is needed if someone does not have capacity at all. As mencap say this subject has caused a lot of confusion and I for one am just beginning to understand it. My son is 48 and just had a capacity assessment because no-one believed he didn't have capacity. apart from me!!! They have been proved wrong but do they care.? This event hopefully will be very useful

KirstyStuartExpert• in reply toBeatriceH2 years ago

Hello - as others have said, LPAs (albeit i do not specialise in those) can only be obtained by those who have capacity in the domain you are applying for (i.e. property and finances or health and welfare) to make them. If your son has already been assessed as lacking capacity in those areas then you would be looking at deputyship instead. If you do think he may have capacity to make an LPA, i am happy to put you in touch with one of my colleagues to discuss that further so do just let me know. Kirsty

BeatriceH• in reply toKirstyStuart2 years ago

Thanks Kirsty. Same question as before then, but about deputyship: if I have deputyship, can my opinion still be overridden? And if it can, what's the point of going through the hassle and cost? Because surely, I should always be consulted as my son's carer.

LaVerite2 years ago

Hi Maurice. I would like to know whether it is in my brother's interests for his care home to "pester" (his word) him with questions after he has already stated what he wants, with a view to making him "change his mind" because the care home does not agree with his decision. He is questioned without an independent party present. He is in residential care under a DoLs and has no capacity. I think this is manipulative behaviour and is having a detrimental affect on his mental health. Any suggestions on what action I should take to ensure his likes and preferences are recorded and reviewed say annually rather than on an ad-hoc daily persistent basis?Thank you in advance.

KirstyStuartExpert• in reply toLaVerite2 years ago

Hello - could you just clarify what subject the questions are on(i.e is it about where he lives or who he wants to see or something else)? Also, what domains your brother has been assessed as lacking caapcity aside from where he lives and care as that is covered by the fact he is on a DOLS (and my assumption around this). it isnt clear and just trying to work out what the best route may be for this. Thanks

LaVerite• in reply toKirstyStuart2 years ago

Thank you Kirsty

The question is about taking an interest in his physical health as we don't believe he is always getting the best of care when no family member is present. He has had various capacity assessments and has no capacity for finance, care or health.

Previously, a family representative could attend any of his health appointments without question or hindrance - someone would just be there, provided they were told when the appointments were, and depending on the issue - minor check-ups maybe not, but serious concerns, certainly.

Lately, however he has begun to be asked on every occasion whether he wants a family member to accompany him, and although he has always been happy to have family at his side, I do believe that when he is asked, the question is either "loaded" so that he will say "no", or he originally did say "yes", but was repeatedly asked "are you sure?" - until he complied by providing the questioner's required response.

Much obliged

KirstyStuartExpert• in reply toLaVerite2 years ago

it sounds as though one side of the system is not talking to the other - so you would expect them to ask him each time if he had capacity - as you would with anyone but if has been assessed as lacking capacity around care, what they may be doing is obtaining updated wishes and feelings. i can see the frustration with this and i wonder if a meeting with the family, your brother (if he wishes to attend), the social worker and the placement to agree a strategy may be helpful so that everyone feels comfortable with the approach?

LaVerite• in reply toKirstyStuart2 years ago

Thank you Kirsty for confirming the sensible approach. I have tried and tried believe me. Unfortunately, I've met with a distinct reluctance on the part of the placement to engage in any meaningful conversations so that ways around things like this (there are others) are never suggested by the placement when I talk to them. I'm convinced that resentment of family help lies at the heart of it, as if I'm questioning their professionalism (which I'm not). I think they see me as a fly in their ointment and would rather I left them to get on with their job. Swat!

Rupertthebear2 years ago

Thanks for putting that on .

oddfish72 years ago

I'd like to know what the test for capacity is. Can a person have capacity in some areas but not in others ? who determines 'capacity' ?

Also, can a person who is subject to an LPA or Deputyship arrangement, have a Will in their name for their assets ?

How will this session work with Irwin Mitchell - is a live event we can log into or is it Q&A ? Do we need to sign up ?

Many thanks.

KirstyStuartExpert• in reply tooddfish72 years ago

Hello - I can address some of your questions for you. i am dipping in all week so will answer as much as i can. if you have other queries, do pop them on this thread.

Capacity is time and decision specific and so yes you can have a person with capacity in some areas but not others. Exisiting guidance and cases tells you the 'relevant information' that a person would need to understand, retain (even if for a short period), weigh in the balance when coming to a decision and communicate their decision (this does not have to be verbal). The professionals assessing capacity should use methods of communication which suit the individual and try things to ensure the person is given the best circumstances to answer those questions (such as time of day or location which they are comfortable in). If you want to know the specific information for a certain decison, i may be able to share that with you so do say and i will try and assist.

As to the starting point, the Mental Capacity Act states that a person should be assumed as having capacity unless proved otherwise.

The assessor could be a range of people from a doctor (such as GP or psychiatrist) or social worker

In terms of your question on wills, i dont specialise in that but will check with a colleague and come back to you on this thread - or if you would prefer, i can ask someone to contact you directly to talk it through? do let me know what may suit better for you

Kirsty

oddfish7• in reply toKirstyStuart2 years ago

Thank you Kirsty, that's very helpful. It's fine to come back to me on the wills question in this thread as it could be useful to others.

KirstyStuartExpert• in reply tooddfish72 years ago

No problem - i have sent my colleague the question and will update once i have that. Thanks

Harriethare2 years ago

Hi I would be very interested on their views on the HOLD scheme as I am looking at this for my son but such a big decision and commitment, especially if it doesn’t work?!

We have been given the go ahead in principle for mortgage but trying to work out how much it will all cost. Any advice greatly appreciated thanks 😊

KirstyStuartExpert• in reply toHarriethare2 years ago

Hello - i use lots of schemes with my clients and know of HOLD but havent used it in practice. I can see the benefit of it providing a home which is great but i am not sure of the disadvantages of this and why it would not 'work' unless payments were not made. i found this site with some usual info on if that helps - ownyourhome.gov.uk/scheme/h...

There are schemes where organisations buy homes for those with learning disabilties or autistic people and provide a rent for life - have you explored those alongside this? i do use this more often and again they provide a home and security to the individual which is what we all want!

If you do want more info on HOLD, it may be helpful to approach a housing lawyer or see if the mortgage advisor can put you in touch with organisations who deal with it.

Harriethare• in reply toKirstyStuart2 years ago

thanks very much for your reply Kirsty. I have asked local solicitor to look over the agreement before I sign as unfortunately Irwin Mitchell said they weren’t taking on any new conveyance at the moment.

It seems like a good opportunity to get my son a decent property after 3 unsuccessful years of looking at other options, supported living not good from what I have seen!

Thanks again

KirstyStuartExpert• in reply toHarriethare2 years ago

No problem - fingers crossed for him and his new home!

49Twister2 years ago

1)My son has recently failed a finance capacity test, he is 48. How do you assess for health and well being and who would do an assessment? I have heard the health one is not easy to prove but I'm pretty sure my son does not have capacity for this. If he fails that do you have to get deputyship, I've been told I don't need to by the social worker as I am his appointee, we don’t own property, can Kirsty confirm this please.

2) I am having a lot of issues regarding my son's household bills in supported living. He shares with another tenant who also has Learning Disability. I am trying to access the account which is in the name of the house, (not in their names) as I have no clue what he pays for these bills individually apart from the total amount which comes out monthly. I’ve been told by the care company I am not able to see this account, because the other tenant pays into that account also, I presume he pays the same as my son. They both pay money into this account to cover bills via standing order monthly from their own bank accounts. I wouldn’t be able to see into the other persons private details or anything just what they each pay. Would it possible to see this account if they obscured the other persons contribution. I feel the company is not being transparent. These bills have not been reviewed for about 5 years, they will ask for more money but won’t allow me to see the account!! Can Kirsty explain the rules regarding this please and what my rights are regarding my son's finance's when he doesn’t have capacity.

KirstyStuartExpert• in reply to49Twister2 years ago

Hello - there seems to be a few issues here - i dont deal with property and financial affairs deputyships but it may be worth coming along to our webinar in a couple of months on both types of deputyship to see if it would be of benefit? When you say, 'failed a finance capacity assessment' - i am taking that to mean that he lacks capacity to manage his own finances so deputyship would be appropriate in that sense. I wonder if a meeting with the care provider and the social worker or commissioner may be helpful to try and unpick and better understand what their rationale is. they may be being conscious of the other persons private data but i can understand why you would want to check it and confirm.

KirstyStuartExpert• in reply toKirstyStuart2 years ago

Also, yes health and welfare deputyships are more tricky to obtain but not impossible if you think they may be needed

LSSN322 years ago

I have had differing opinions as to whether to get Deputyship for Health and Welfare for my daughter who has severe learning disabilities. She does not have specific medical issues. We have already applied for property and finance. The solicitor says she would only advise applying if we come into conflict with local authority as to what is best for her. She says it is difficult to obtain it unless there is a very good reason. What is your advice

KirstyStuartExpert• in reply toLSSN322 years ago

Your solicitor is right that it is difficult to obtain compared to deputyships in respect of property and financial affairs. The Courts are reluctant to allow the orders but it is certainly not impossible and depends on the complexities of your daughter and if she would be assessed as lacking capacity to make health and welfare decisions herself. Waiting until a dispute would mean that a court application for that dispute would need to happen first and given deputyship can take a while to come through (months) then this would not be in time for any active dispute you were experiencing. She would not need to have medical issues but you would likely need to be making best interest decisions for her regularly which is not clear from your snippet. I am joint running a free webinar in the next few months on deputyships if that is of interest to find out more? Feel free to email me and i can add your name to the invite list when it is prepped. Kirsty

Mini-mum12 years ago

We haven’t got deputyship for our daughter, who is 27 & has severe learning disabilities. Can you advise whether or not it is necessary?

She lives in a supported living home, & there are no disputes regarding care, health or finances.

KirstyStuartExpert• in reply toMini-mum12 years ago

Its hard to say from just looking at the info there but I would say that someone needs to be supporting her with her finances - are you already doing this? I assume you are your daughters rule 1.2 representative for her deprivation of liberty authorisation if she is in supported living and so feel very involved already? I think it comes down to whether you are making best interest decisions and/or need to and that making individual court applications for any dispute may be too onerous and stressful. I am joint running a webinar in the next few months on deputyships if that is of interest to find out more? Feel free to email me and i can add your name to the invite list when it is prepped. Kirsty

Mini-mum1• in reply toKirstyStuart2 years ago

Hi Kirsty,

Yes I support her with finances (joint bank account) & I am her representative for DOLS. We make best interests decisions with the social worker/ care-co / medical professionals & her service provider. We haven’t had any disputes -so far.

I think your webinar would be useful- can you give me your email address so I can register interest?

Many thanks

KirstyStuartExpert• in reply toMini-mum12 years ago

of course, it is kirsty.stuart@irwinmitchell.com

Mini-mum1• in reply toKirstyStuart2 years ago

thank you -email sent

Bluey2032 years ago

Hi, just wondered where we find this weeks ask 'The Expert event with Kirsty Stuart from Irwin Mitchell' about Deputyships. Do the questions and answers continue on this post, or is it somewhere else? If it is elsewhere could we have a link, Thank you!

KirstyStuartExpert• in reply toBluey2032 years ago

Hello - I am popping on all week to answer questions so do pop it on this thread and I will try and answer it for you. Kirsty

KirstyStuartExpert2 years ago

Hello Everyone - Kirsty Stuart here. I will be popping on all week to look at any questions/queries I can help with. I am an associate lawyer at Irwin Mitchell solicitors and deal with all matters around Court of Protection health and welfare, Community care, Judicial Review and Mental Capacity law. I specialise in those who are autistic and/or have a learning disability and are stuck in in-patient mental health units but happy to try and assist with any queries or find a colleague who can ☺️Thanks

Nikkich2 years ago

Hi ,I have been trying to apply for deputyship for my daughter and it needs a statement from a medical professional ,my gp refuses to do then now and the social worker has never met her ,so I am stuck ..what can I do?

LSSN32• in reply toNikkich2 years ago

My daughter’s GP also said they don’t do these. It’s ridiculous given they do yearly checks and she doesn’t see other medical professionals.

KirstyStuartExpert• in reply toNikkich2 years ago

Is this the capacity assessment you are having difficulty with or the supporting statements as to the application itself? I know some surgeries charge for producing reports but it may be worth asking the practice manager to see if they are able to do it? or does your daughter have a psychiatrist or psychologist involved? they may be able to undertake the capacity assessment

Maurice_MencapPartner2 years ago

Hi KirstyStuart , we had some questions from Roebuck789 on the forum, here are the links to his posts:

healthunlocked.com/mencap/p...

KirstyStuartExpert• in reply toMaurice_Mencap2 years ago

Thanks Maurice

CAhmadi2 years ago

Afternoon , I am an appointee for my 18 year old autustic son .. Will i need to apply for power of attorney ?? My son cannot make decisions on his own .

Thank you