Imagine not being allowed to see your own father…. and not just because someone says you can’t, but because you are legally prevented from seeing him.

This is what happened to Steven, a Helpline caller I’ve been supporting. The person preventing him from seeing his father (Walter) is his own brother, Richard, who holds Power of Attorney for their father. Walter has dementia and has been in hospital for the past year and a half. Richard is also preventing other family members from visiting Walter, or even being kept informed of his whereabouts or health.  His nursing and care staff have all complied with these banning instructions.

Steven and his brother Lewis

It’s not uncommon for Power of Attorney (POA) documents, registered with the Office of the Public Guardian (OPG), to include the power of deciding who the granter (in this case Walter) is able to consort with. However, this power, like all the other powers that may be given to the attorney, must always be for the benefit of the granter.

Once a power of attorney is registered, the only way it can be revoked (unless overturned or superseded by a guardianship order endorsed by a sheriff) is if the granter revokes it themselves - as long as they still have the capacity to request and take that action. As most people know, dementia is (unfortunately) a degenerative disease and leads to a decline in mental cognition and capacity. In March 2016 Walter, was assessed as not having such capacity, but in early 2017 (over a year later) a previous Power of Attorney document, that made Steven a joint power of attorney, was revoked and another one registered making Richard sole attorney.

However, the part of this case that I find the most frustrating, is the conduct of the health and social care professionals and regulators involved.  It appears they have taken the POA document literally and at face value, and not considered the fundamental principle of the Adults with Incapacity (Scotland) Act 2000, (AWI) which is to ensure that the actions of the attorney are always for the benefit of the granter, and not the attorney!  If there are concerns that Steven and other family members are somehow going to harm Walter, then of course it would be appropriate for Richard, who has welfare responsibilities for Walter, to prevent them from visiting. This would comply with the principles of the AWI act. However, if the request to prevent visits to Walter is due to spite, a family dispute, or other forms of abuse, then the health and social care staff should consider the principle of whether the attorney’s instructions are to benefit the granter (Walter). The law and regulators would uphold these actions as complying with the principles of the AWI act. In this case however, there seems to be more concerns about complying with the wishes of the attorney rather than considering what is of most potential benefit to Walter i.e being visited by close family.

I am disappointed that the safeguards that should be in place to ensure that the principles of the Adults with Incapacity legislation are upheld have not been more effective. I have spoken to staff and regulators about this case (social work, Office of the Public Guardian and Mental Welfare Commission), all of whom have either stated that I need to speak to one of the other regulators or that they are unable to act due the instructions of the attorney.

Action on Elder Abuse Scotland challenges this apparent fundamental misunderstanding and misuse of safeguarding legalisation and will continue to support Steven with his cause to be permitted to visit his father by both himself and other family members. We would also support measures to provide a greater understanding by the public and health and social care professionals on the responsibilities associated with Power of Attorney.    

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