Scotland - care home. Who has the legal 'say'

[flourpot]

Looking for a bit of advice as I'm in a situation where I have POA for a relative and I disagree with the discharge team at hospital.

Relative is 93, has no capacity, no idea what's going on and lives upstairs flat. I think it would be dangerous to send her home.

Brief phone call today indicated the team think home with carers is acceptable

I did not realise that when the decision needed to be made about a care home it might not be my decision.

I'm struggling to find out whether my POA means I can disagree with the team at the hospital or if I have to accept their choice.

Any ideas?

I wasn't really trying to. It's the choice of where the discharge is to that I am questioning.

At no time have I said I want her to stay in hospital, juts who has the overall say of where she is discharged too.

Thank you this is very helpful

Thank you, that one threw me a bit as I don't think I am doing anything wrong here by trying to advocate for her, that's rather the point of the POA and it's concerning anyone thinks that could be removed by me trying to push for a safer environment.

I'm not happy to share the hospital at the moment, it's a current ongoing situation so I don't feel that appropriate.

Yes, I think its a question of where to focus your energies

I would also say to professionals that you wish it to be minuted in the recird of the meeting that you are attorney, adult has lost capacity, you are actively exploring care homes as a matter of urgency and accept no responsibility if they insist on dischsrging home and she sustains injury. And

Remember, even if she does go home, you could move her as soon as you find a care home

Abdolutely no way would your appointment be revoked for advocating for a safe placement. Don't worry about that

She is lying in a hospital bed and would be utterly confused by being wheeled into a meeting full of strangers talking about things she doesn't understand. That's not an option
If you said this to them, they may see you as being controlling. It’s perfectly possible for the meeting to take place on the ward either in a side room or at her bedside. Professionals need to see her to get a full picture of her condition. They clearly think she’s relatively OK to be discharged. It was only when we insisted on having a best interest meeting with my SF present that his social worker, who had never met him face to face, realised how bad he was. The following week we met again to assess him for capacity. He is now under a DOLs order as a result.
Make sure that she is assessed for having capacity before leaving hospital and insist that she is admitted to a discharge to assess unit where an informed decision can be made. It’s an absolute minefield where professionals are hoping family will rally round to support their relatives as the broken system cannot cope with the immense load.

That’s not technically correct.
If the local authority social workers genuinely consider that the attorney/deputy is taking decisions that are not in the best interests of the person, then this a matter that needs to be addressed by way of an application to the Court of Protection which can – as a last resort – direct the removal of the attorney or the deputy. It should be noted that, by the same token, a health and welfare attorney (or deputy) cannot decide on behalf of a self-funding individual lacking the material capacity where they should live, although by definition the views of the attorney/deputy as to where their interests would best be served should carry very great weight with any property and affairs attorney (or deputy) appointed if the same individual – or individuals – is not discharging both health and welfare and property and affairs functions
https://www.mentalcapacitylawandpolicy.org.uk/powers-of-attorney-care-homes-best-interests-and-deprivation-of-liberty/#:~:text=If%20the%20local%20authority%20social,removal%20of%20the%20attorney%20or

That doesn't apply in Scotland @Soontobe60

Speaking to the local carers centre is a good idea OP, as is speaking to advocacy.

As POA you can make the decision about where she lives (if it's in your POA powers, it probably is) but only from the options available. You don't need guardianship as you already have all the powers you need. Section 13za suggested by a previous poster doesn't apply here as you have an active POA.
You can move her to a care home now if you self fund but you won't get the free free personal care element of the fees as this needs to be assessed and given by the local authority

My advice is
Contact carers centre and advocacy to help get your voice heard
Ask social work to do an assessment
Ask if there is a risk assessment in place
Keep saying the discharge will be unsafe.

Also jfi there's no such thing as best interest meetings in Scotland

@Malbecmoron mental welfare commission scotland did a briefing on poa and deprivation of liberty. Their view is that POA should not be used to deprive an adult of their liberty. In my local authority, mental health officer would recommend guardianship. But, I understand other authorities may take a different view

She is lying in a hospital bed and would be utterly confused by being wheeled into a meeting full of strangers talking about things she doesn't understand. That's not an option

If you said this to them, they may see you as being controlling

I'm not saying it to them. I'm saying it to you. They already know this information.

I was referring to the fact that court of protection has no jurisdiction in Scotland @Soontobe60.

Of course poa shouldn't deprive liberty but I don't think the OP is planning to do that! Nobody is going to apply to remove the POA unless they are doing something awful. The OP is clearly trying her very best to ensure her mum gets the right care.

You definitely don't need guardianship if there's an appropriate POA in place. What extra guardianship powers would you ask for? Doesn't make sense

@Soontobe60 your link does not refer to Scottish law

I don't know anything about guardianship and it's not something that's been mentioned by anyone I have spoken to.

The liberty thing? I don't really know what people are trying to suggest. I don't actually want to deprive her or anything. Quite the opposite in fact. I feel she would have a better quality of life in a care home where there are activities, TV etc available, not to mention other people, then she would sitting/lying in her house alone for the majority of her time unable to do anything.

as well as the obviously safety risks

I haven't read the links re liberty but I will do when I get home, I thought the POA saying I can make decisions was enough. Now it seems it's not worth the paper it's printed on

@Soontobe60

You haven't said anything remotely helpful on this thread so I'm going to scroll past any further posts from you.

I would ignore the deprivation of liberty stuff OP. It doesn't apply here

In the POA document what does it say about what activates POA and have these conditions been met? My relatives says something like "when a medical practitioner certifies that I am incapable". The POA isn't any use without that certification to go with it. Have you got that evidence (and my apologies if you've already answered the question and I've missed it)

I'm asking because we are trying to sort out relative's financial affairs and the bank wants not only the POA document but also the certification from their doctor. Without both, we can't do anything.

Also it has to be the original document with the seal (?) on it and not a photocopy or email, unless it's been certified by a solicitor.

I'm in England but when my mum was in hospital recently they would discharge her to me (I have fully enacted POA for health and finance) and I then decided to put her in a home but I couldn't object to her discharge

It's all been done I can't remember what it says but it's not under any question.

Thank you, I think I will. It's not something that has come up at all.

Dh and I did our Powers of Attorney (both financial and welfare) back in September, naming each other and my lovely SIL. They can act "together or separately" (I trust SIL competely, as well as, of course, Dh ).

I've just checked the paper work and it says....

2.7 I have considered how my incapacity is to be determined and have decided it shall be so where my welfare attorneys reasonably believe that I am incapable.

....

2.12 This deed incorporates the necessary “capacity certificate” in the form prescribed by the 2000 Act.

I know that are are massive delays at the Office of the Public Guardian so they're in the "queue" and they've not yet been registered, but the lawyer assured us that if (heaven forfend) the powers of attorney should be needed, the OPG would expedite it.

My dad ended up having to put my mum into a home, using his power of attorney (which fortunately they'd both done for each other just before they went on the holiday where she acquired the head injury that ultimately ended up killing her 5 years later through a head injury induced early onset dementia ) with an emergency admission, rather than one of the ones he'd been looking at, as he recognised he wasn't coping and she'd had yet another fall. He ended up having some money paid back after (I think) the Social Work assessment confirmed her needs - but payment was never the issue as he just wanted her to be in a place where she would be safe.

I agree with others that you need to rapidly check out local suitable care homes. Mum needed somewhere with a dementia unit rather than just a "plain" nursing home.

I also agree that you need to be present at the "discharge" meeting - and make it absolutely clear that you will not be present at your relative's home when she is discharged, nor overnight. Ask very explicit questions about what risk assessments have been done.

You can't stop the discharge but you can advocate for a suitable care package. It may be that your relative ends up going somewhere temporarily until you can sort out somewhere better.

Even in the nursing home, mum ended up having to have pressure alarm pads around her bed as she didn't understand that she could no longer balance/walk and would fall every time she tried to go to the toilet.

I wish you well

There's a lot of scare mongering here.

Being part of this procedure every working day I can assure you saying that you don't think your relative would cope with the meeting would not be viewed as controlling.

I wish I could give you the answers you are looking for as I feel your frustration in every other post. Unfortunately, as you've been told you cannot insist your relative is discharged to a community bed.

The issue is everyone feels theirs relative isn't capable of being at home. For what it's worth, I agree with you. The thing is, as most community carers will tell you there are women, just like your mother in homes as I type with stairs, kitchens rugs & various other hazards with no clue that cleaning fluid isn't to drink, hobs cause fires & stairs aren't safe. Usually the system reacts to circumstances, ie the police finding a wandering concised gentleman on the street or a little old lady breaks her hip.

I've known a care provider telling staff to leave confused elderly peoples front door be left unlock (despite key safe) so the confused client could get out. Of course, they may not have the cognitive ability to achieve this, let alone the mobility.

As you've been made aware, as a self funder you can make calls & arrange assessments yourself as you have POA. The hospital won't be able to arrange a care package on a day or two anyway. Any provider (community or residential) usually complete their own assessment in the hospital as it's not uncommon to find hospitals over egg the patients abilities.

Tell the hospital your plans, stress your concerns, point out it's an unsafe discharge, give examples of near misses in the past with mum. Just remember they hear this every day, sadly.

You won't find anything in writing that gives you rights you wish, as far as I am aware.

Good luck & make sure you are looking after yourself, you are doing everything you can.

Guardianship is the same powers as poa but applies if the person loses capacity without poa.

You don't need to worry about that.

Example. Someone comes into hospital and is deemed as an AWI. No one has powers. When planning discharge you need to apply for guardianship or move under section 13za whilst awaiting it.

Someone comes into hospital and is demoed as an awi and has poa. Job done. No need for guardianship.

@halfshutknife

It's ok, that poster has no idea what they are talking about. I don't need to tell the hospital this, they already know. I think that poster just wanted to have a dig at me because I can't see any other reason for saying that.