Who has final say in this situation?

[abovetheweather]

Hello - any advice or experience on this situation gratefully received.

My MIL lives alone since her husband's death a year ago. She's been completely bedbound for four years. She refused physio to help her sit and walk after falling four years ago, and her condition has worsened to this point. Her husband cared for her up until it got too much for him, when we organised private carers. Since his death, she receives 4x daily visits from carers who do all her personal and feeding care (she's doubly incontinent and on a catheter, can't sit, stand or walk, cook etc). Her two sons (one being my DP) visit every other weekend to shop, clear out the fridge, empty bins, keep on top of her prescriptions, sort out her newspapers etc. They both live 2.5 hours drive from her. It's gruelling, and affecting all our family lives, and we need more help. The house is becoming more dilapidated, with an old boiler, a failing washing machine, and more. Among her physical issues, which also include being pre-diabetic, she is losing feeling in her hands, and can no longer dial a phone. She suffers short-term memory loss - for example, she can't remember if a GP has called or why she's had a blood test, and forgets to write things down. Undoubtedly she is grieving too, although she never / rarely mentions her husband. She's lying in a bed, 24 hours a day, with only visits from the carers to break up the day. DP phones every day too.

For reasons that don't need detailing here, a GP visited her in December 24 and said that the best next step was for MIL to go into private nursing / care home. We are in total support of this, feeling that she will be much safer, have more company, have more stimulation and it will very much ease the burden on all of us.

MIL does not want to go into a care home, preferring the current set-up. She is not really aware and doesn't care about the effort and admin that it takes the brothers. The brothers do not have POA for her health.

Social services have recently visited and say that despite all the above she does not need to go into care, and that her care can not only be increased (to cover shopping, prescriptions, laundry etc that the brothers are currently doing) but will reduce in cost as the council will fund part of it (which was extremely surprising to learn after a year of paying full whack). However, her failing health, failing house and general safety don't seem to have been considered - and her being at home will not alleviate the worry the brothers have about what the next phone call will bring. It will mean they can visit on a more informal basis.

In summary.

MIL lives alone in a bed 24 hours a day, in a falling apart house, with her sons worrying about the entire set-up and constantly in fight or flight mode for the next phone call where something has gone wrong - which could be anything from the oven is broken to running out of toilet paper based on past experience. She does not want to go into care. The brothers don't have POA. The GP states she should go into care. Social services think she can manage at home with more care. What happens next? I fear I know the answer, and that it's MIL staying put as she can still decide, despite her failing health and short-term health issues. Who do we speak to first, can we request another social services visit? Who has final say?

Thank you so much if you've reached this far. Even typing this out is cathartic.

The main criteria for sectioning someone is that they have a mental "disturbance" that requires assessing or treating in hospital, they also need to be presenting a risk because of this to themselves or others (and be refusing an informal admission). You can't section someone because their physical health makes them vulnerable. Even with dementia you'd mostly need someone to be experiencing BPSD not just some memory loss.

DOLS can only be used for people who lack capacity and only applies in care homes / hospitals (so once a person is in a care home the care home can apply for a DOLS to prevent them from leaving, or to keep them on a 1:1 etc.). You can't apply for a DOLS order for someone who is in their own home.

Social care do have some powers to insist someone is cared for in a care home if their needs cannot be met at home (but would be likely to go to court of protection to request an order if there was a lack of capacity and any concerns about what the person might want).

Courts can also look at Protection of Vulnerable Adults as an option.

Generally though, if a person has capacity and wants to stay at home social care will support that. Even if someone loses capacity, if they have expressed or it is clear that their preference is to be cared for at home - and their needs can be met, this will be done at home (which both social services and the courts would support).

It can be a nightmare for families who just want the person they care for to be safe and looked after but even if you are old / frail / disabled / forgetful you still usually get to make your own choices until you lose capacity. Even if other people disagree. If you lose capacity other people make those choices for you but best interests (mental capacity act) says those choices still need to consider what you would want if you could choose and what is least restrictive.

Thank you @VerityUnreasonble for that clear and helpful post .
I don't suppose you could signpost me to advice on what to do with a situation where an professional attorney holding a H& W poa is causing real difficulties for friends of the donor?

Apologies for high jacking , was going to PM but not everyone happy to open PMs.

I don't mind PMs (although probably not going to click on links!). It depends a bit what the issues are really but fundamentally any issues with a POA, if you feel they are acting improperly or against the best interests of the person would be the domain of the Office of the Public Guardian and then possibly need to go to Court of Protection. I've always found the OPG quite helpful to ask about things.

Another possibly less nuclear option would be to see if an advocate could be appointed for the person who lacks capacity, they might have more luck negotiating with the POA about any issues. How you request an advocate can vary slightly from place to place (depends on how local services are set up) but you can usually Google your local area and advocate. Depending on the issues an IMCA (independent mental capacity advocate) might be appropriate but they tend to need a professional referral.

Thank you so much @VerityUnreasonble ,I will PM you if you don't mind .

Well I would have done, but see that function is still disabled.
I thought it had been reinstated .
I'll have a think about advocates.I imagine the donor would need to agree to an advocate .?
I'm tempted to start a new thread but it might be outing, though that's not really a concern.
But also it seems so rare to have a solicitor as poa for H&W.

Start a new thread, there are a lot of people on here with deep knowledge of the legal protections for vulnerable adults. A professional attorney is not such an uncommon situation that it's going to be outing, many people choose it for all sorts of reasons - not wanting to burden family/friends, having no family to take on the PoA, having complex needs.

It's unusual but not unheard of, presumably the donor had their reasons at the time for choosing them. Although it might have been helpful (hindsight is a lovely thing) if they had also left them with clear instructions of their wishes that would have covered the situation.

The donor having to agree - like anything with capacity, if they have the capacity to agree then yes they would (and are within their rights to request one), if they don't one could be appointed in their best interests. The LPA might need to agree but it wouldn't be a good look if it later went to COP and they'd refused. A social worker could also request an IMCA without needing the LPA to agree.

This option would make perfect sense if the MIL had perfect capacity and was able to appropriately weigh up the options available to her and make a sensible decision accordingly. It doesn't necessarily have to be the decision that the family want, but it is a decision that has a chance of working, won't lead to the MIL incurring harm or potentially death and gives the sons a real option of withdrawing any care that they are offering without worrying that they have effectively hurt or killed their mother by doing so.

The problem is that capacity isn't a black and white thing and there are lots of people that operate very much on the margins. This often disproportionately includes the old and the disabled. I have a relative who has very strong opinions about where they live and what they do but these desires are often completely unrealistic and often dangerous for them and others. It's easier to manage some things (e.g. Driving which the DVLA simply won't allow) than other things that technically are possible but are a terrible idea. The reality is that SS like to facilitate some of this stuff and they then simply don't have the resources or expertise to help when someone inevitably goes wrong. The family is then stuck solving yet another completely avoidable problem.

The problem is that capacity isn't a black and white thing and there are lots of people that operate very much on the margins
. It's easier to manage some things (e.g. Driving which the DVLA simply won't allow) than other things that technically are possible but are a terrible idea.

Such excellent points . Capacity ... capacity for what?
It's supposed to be decision dependent , but in reality I think it's only assessed for major decisions like moving into care.
And of course capacity fluctuates and will depend on factors like health, stress, tiredness etc.

Huge numbers of people drive with dementia! No one tells DVLA.

This. It relies on it being reported which very few people want to do. I begged my dad not to drive anymore as I didn't think he was safe. He agreed but also said to another family member he thought I had "been a bit over the top about it" and so I took the keys away. No regrets, would do it again.

I also knew someone whose GP wrote to the DVLA saying his eyesight wasn't good enough to keep driving. DVLA wrote to him saying they'd awarded him a three year only licence. 🙄 Don't imagine the DVLA are on top of this. As with many other things, the dirty work comes down to you.