Summary: Mrs X complained the care provider refused to communicate with her and allow her to see her mother, Mrs Y’s, care plan even though she has lasting power of attorney. We have ended the investigation as we cannot achieve the outcome Mrs X is seeking and the Office of the Public Guardian is best placed to address concerns about the actions of attorneys. Mrs X can also approach the Court of Protection.

The complaint

1. Mrs X complained the care provider refused to communicate with her and allow her to see her mother, Mrs Y’s care plan even though she has lasting power of attorney (LPA). She says this has caused her distress and upset and has affected her relationship with her mother. She wants the care provider to remain impartial and to encourage Mrs Y to see her and her family.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I have considered the information provided by Mrs X and discussed the complaint with her on the telephone.
5. I gave Mrs X and the care provider the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Mental capacity

6. A person must be presumed to have capacity to make a decision unless it is established they lack capacity.
7. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
8. A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting power of attorney

9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
10. There are two types of LPA.
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
11. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

The Court of Protection

12. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
13. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

What happened

14. Mrs Y has dementia. Mrs X and two other relatives have LPA for Mrs Y.
15. Mrs Y lived with Mrs X for some months. Following a stay with another relative, Mrs Y returned to her own home and the two other relatives who also hold LPA employed the care provider to support Mrs Y.
16. Mrs X says when she visited Mrs Y the care provider refused to let her take her mother out to lunch. From then on the relationship became strained and at later visits Mrs Y would not let Mrs X in.
17. Mrs X raised her concerns with the care provider. She said she had LPA along with two other relatives and yet the care provider had not involved her in her mother’s care, was not sharing the care plan with her and was not supporting Mrs Y to have contact with her.
18. The care provider responded to Mrs X. It said it had received a signed letter from Mrs Y that she did not want contact with Mrs X and did not want the care provider discussing the care arrangements with Mrs X.
19. In Spring 2021 the OPG wrote to Mrs X after investigating concerns around the management of Mrs Y’s health and welfare and property and financial affairs. It concluded all three relatives should remain as Mrs Y’s attorneys. It found Mrs Y lacked capacity to create or revoke her LPAs or manage her own finances. It said attorneys should ensure they fully complied with the Mental Capacity Act code of practice and ensure all decisions were made in the best interests of the donor.
20. It said if the attorneys were not able to find a resolution within themselves regarding any of the concerns and if they continued to have issues working together in Mrs Y’s best interests they should consider making an application to the Court Of Protection.
21. Mrs X wrote to the care provider and sent a copy of the OPG report. She asked it to support her with visiting Mrs Y. The care provider responded that this seemed to be a family dispute which the care provider could not get involved in. It provided care for Mrs Y only.
22. Mrs X remained unhappy and complained to us. She has also raised further concerns which the OPG are investigating.

Analysis

23. The care provider is not employed by Mrs X but by other relatives. In addition, Mrs Y has signed a letter to say she does not want it to speak with Mrs X about her care. If I were to investigate further, it is unlikely I could say the care provider was at fault for its actions, nor could I achieve the outcome she is seeking. The care provider is essentially caught in a dispute between Mrs X and other relatives who are not supporting Mrs Y to see Mrs X.
24. The underlying issue is the lack of consensus between Mrs X and two other relatives who all hold LPA. I cannot resolve such issues. Mrs X has already approached the OPG with her concerns. Mrs X can also apply to the Court of Protection to make decisions on behalf of Mrs Y who can help to ensure any decisions are made in Mrs Y’s best interests.

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Final decision

25. I have ended my investigation as I cannot achieve the outcome Mrs X is seeking and the OPG is best placed to address her concerns. In addition, it is open to Mrs X to approach the Court of Protection.

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Investigator's decision on behalf of the Ombudsman