Guardianship - vulnerable elderly relative

[notnowdennis]

My elderly relative is currently voluntarily residing in an acute mental health unit and the medical/social work team are proposing a local authority guardianship to help them move into a care home and self fund. Neither of my relative’s adult children have capacity and it’s looking like I am the nearest relative.

I don’t know what is best for my relative and whether I should seek independent legal advice on their behalf and/or a deputyship to manage their rather complicated affairs. I don’t have resources to pay for this, but they do. I think that my relative should have been a section 3 under MHA.

does anyone have any knowledge/experience of this kind of issue and the best way to proceed?

All this hinges on their mental capacity (and you can be mentally unwell and still have mental capacity).

The Guardianship gives the local authority the power to insist a person lives in a particular place (I.e a named care home) and request that they engage particular treatment. It's an alternative to being in a hospital setting but reality it can be pretty toothless if the person decides not to comply.

Do they not have an IMHA who can talk it through with you /them?

You can only apply for a deputyship for their finances if they have lost capacity to manage them (and again, mental ill health doesn't necessarily mean lack of capacity).

How long have they been admitted for so far?

Thanks for replying. This is the third admission in the last six months to the mh unit and they haven’t yet appointed an IMHA. Six admissions to hospital this year for various related treatments.

They are doing a new capacity assessment and capacity has previously been deemed to be fluctuating. They are suicidal, hallucinating, have dementia and cognitive impairment. It’s a very sorry situation. They are also sometimes for short periods of time quite lucid and conversational but cannot retain information easily.

We discussed a lasting POA but it was clear they could not hold the information well and he changed his mind several times while it was discussed.

I am concerned no one else can act for him apart from the hospital team and he’s really upset by the situation. They are very kind, but I want to make sure he gets the best outcome for him.

There most likely won't be appointed an IMHA if they are there informally (sorry, I mainly deal with people who have been detained under the MHA where IMHAs are standard).

Is your concern that voluntary admissions have been used to avoid s.3 with the intention of subsequently avoiding s.117 aftercare responsibilities? If he lacks capacity he can't at that time agree to remain there voluntarily....

It doesn't sound like any of his inpatient stays have been more than a few weeks. Have they all been voluntary too?

If you agree that he needs to be in residential care when he is discharged from hospital and that this as a general care plan will reduce the risk for further illness/harm, then it's a case of the professionals examining what options they have available (Guardianship, DoLs etc) and seeing what they think will give the best chance of success.

The finance stuff is a completely different matter and can be dealt with separately outside of hospital and with assistance from the local authority.

If you would actually like to manage the money yourself then you can apply to the Court of Protection in your own right to be appointed a deputy. The court prefers a family member over a professional usually.
It does take months and months though.

I think you probably don't actually mean guardianship as this is a little used provision of the mental health act used to enforce someone residing in a certain place. It's been superseded by CTOs and the MCA largely and it doesn't have anything to do with finances. I think you probably mean deputyship for finances which is awarded by the CoP if a person lacks capacity themselves. It's usually only worthwhile to do this if they have some assets however otherwise if it's just benefits the LA will handle.

Whether someone is detained under S3 MHA is not something you can control or make happen. There are strict criteria that need to be fulfilled. Yes it would be handy because they would then get S117 funding but you cannot be detained for that reason. The appeal system is to appeal against being detained rather than for it on the assumption that being detained is usually a last resort and a bad outcome for people.

I suppose you could complain via PALS if you think they are being illegally detained as they lack capacity to consent to their admission but if they lack capacity but don't object to admission then other legal frameworks are available eg MCA DOLs (which doesn't come with any funding) or if the admissions are less than 28 days they may be under S2 which comes with no funding. I doubt the hospital would risk an illegal detention and you will probably find they are under MCA DOLS. It would also be possible to have capacity to consent to hospital admission but not to have capacity to manage finances or agree to reside in a care home as these are different decisions and a capacity assessment is needed or each. Ie the person may be capacitously consenting to their admission but not to future plans.

If he didn't make an LPA then indeed no-one will be able to act for him. If he lacks capacity then an MDT best interests decision will be made. Family should be involved in that but no-one has a veto or a final say. If there are no suitable family to consult an IMCA will be appointed. I would expect you are being approached to see if you wish to be consulted in a BI meeting. If you don't then you can decline and they will get an IMCA.

If the person is deemed to lack capacity and is having multiple admissions such that it appears they can't cope at home then a best interests decision for a care home placement is quite likely. If they have savings over threshold or a house without a spouse in it then they will be self funding. The LA will likely arrange a deferred payment in that instance until the CoP grant deputyship. They will recoup the money when it can be accessed.

So basically there are a whole lot of checks and balances by law before placing someone in a care home against their will and you can choose to be a part of speaking for the person (or not if you don't want to) but in the absence of an LPA no-one will have the sole right to make decisions for the person.

Thanks hat girl.

“Is your concern that voluntary admissions have been used to avoid s.3 with the intention of subsequently avoiding s.117 aftercare responsibilities? If he lacks capacity he can't at that time agree to remain there voluntarily....“

Yes I am a little concerned this might be the case. He says he wants to go home frequently, but he cannot look after himself at home and there is a vicious cycle of him going home, harming/having an accident and then returning.

I think his first admission was a section 3 and subsequent have been 2s. No stay has been longer than 28 days because of other treatments/operations and discharges. Poor man - it’s been awful.

Covoid

Yes, they are talking guardianship, which I was confused by for the same reasons you’ve mentioned. They did also mention MCA Dols yesterday too.

I hope he does go to a care home - it would be safest and give him the best quality of life in the circumstances.

What I think is becoming clearer from both pieces of advice is that I can/could get the deputyship for finances underway with COP and support of the medical team and also input on best interests on the welfare/living arrangements and care plans.

Thank you

If he's ever been on S3 he will have a right to S117 funded aftercare in perpetuity

However for a first admission S3 should not be used. I suspect it would have been S2 which had no after care rights.

Ask to attend an MDT meeting in the ward or to meet with the consultant and/ or discharge planning co-ordinator. They should be happy to talk to you if your relative agrees.