Summary: Ms Z complained about the way the Council dealt with Mr X’s finances and will. We have ended our investigation as issues around Mr X’s will are best resolved by a solicitor, the records show Mr X did not want Ms Z involved in his finances and Mr X has died so any injustice caused to him cannot be remedied.

The complaint

1. Ms Z complained about the way the Council handled Mr X’s finances. In particular she complained it:
1. Failed to carry out a mental capacity assessment before Mr X wrote his will and did not involve his family.
2. Removed her as his lasting power of attorney and wrongly told her there was a court order preventing her seeing Mr X.
3. Told her it was dealing with his finances when it was not.
4. Failed to inform the Department for Work and Pensions when he moved into a care home.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide:
• any fault has not caused injustice to the person who complained, or
• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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 Ms Z and have discussed the complaint with her on the telephone. I have considered the Council’s response to some initial enquiries.
5. I gave Ms Z and the Council 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

Relevant law and guidance

The Mental Capacity Act

6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
7. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
8. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
9. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Lasting Power of Attorney

10. 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' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
11. There are two types of LPA: Property and Finance LPA and Health and Welfare LPA. The Property and Finance LPA 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. The Health and Welfare LPA 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.
12. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
13. An individual may choose to end an LPA by making a written statement called a deed of revocation and sending it to the Office of the Public Guardian (OPG).

What happened

14. Mr X lived at home with his mother. Mr X had physical and mental health conditions and received a package of home care support. Mr X’s needs assessment from July 2020 noted it was important to Mr X for him to be consulted on any decisions regarding his care in the first instance. In July 2020 the Council assessed Mr X’s ability to manage his finances. It concluded he had capacity to manage his money and finances.
15. In March 2021 Mr X agreed for his mother, Ms Z and two other relatives to be his lasting power of attorneys. Around this time safeguarding concerns were raised and the Council referred Mr X for an independent advocate.
16. Mr X’s mother became terminally ill and struggled to support him. Mr X had a fall at home and was admitted to hospital. The Council reviewed Mr X’s needs assessment and noted he needed a 24 hour nursing placement. Mr X moved into a care home.
17. After a further hospital stay in late 2021 the care home refused to let him return. Mr X therefore moved to another care home. The Council reviewed Mr X’s needs assessment. This noted Mr X did not want information or contact with Ms Z. It noted he insisted Ms Z and another relative were not involved in his finances and welfare.
18. In October 2021 Mr X met with his advocate and his social worker. Mr X said he wanted everyone but his mother removed from his LPA. He was happy for another relative, Mrs Y, to be his guardian but not his LPA. Mr X said that if his mother died, he would like the Council to look after his finances.
19. In November 2021 Mr X revoked the power of attorney for all his relatives except his mother.
20. In February 2022 Mr X met with Council officers from its safeguarding team, his social worker and his advocate. The advocate’s notes record Mr X wanted the Council to manage his finances and Mrs Y to be his guardian. He did not want contact with Ms Z or her sibling. He wanted to amend his will. The care home agreed to support him to arrange a solicitor.
21. In December 2022 the Council carried out a mental capacity assessment about Mr X’s capacity to make decisions about his property and financial affairs. It concluded he had capacity to make such decisions and was able to understand, retain and weigh up the information to make an informed decision. It also reviewed his needs assessment. This noted he wanted to move to a care home nearer to Mrs Y but wanted to ensure this was done correctly and not rushed. Mr X did not want information shared with Ms Z and wanted the Council to manage his finances.
22. Mr X died in Spring 2023. The family placed a caveat on Mr X’s will.
23. In August 2023 Ms Z and another relative complained to the Council over various issues. The Council responded in December 2023. It apologised for the delayed response and explained this was due to staff illness. It noted Mr X had not consented to sharing information regarding his health and welfare or finances with his family so it could not share information with Ms Z. It noted that a family rift had developed between Mr X and Ms Z and another sibling after which Mr X cut off contact and instructed the Council to restrict family members’ access to his information.
24. It explained the Council had not taken any proceedings with the Court of Protection or Office for the Public Guardian regarding Mr X’s LPA. It explained an individual could revoke the LPA. It said the Council had not conducted a formal mental capacity assessment regarding Mr X’s capacity to give instructions about his will. This should only be done if a person may lack capacity to make the specific decision in question at that time. In relation to the delay in informing the DWP of Mr X’s change of address in 2021 it said Mr X was managing his own finances at this time. However, it considered some prompting or oversight would have been beneficial and apologised for this omission.

Analysis

25. The records show Mr X consistently did not want Ms Z involved in his financial affairs or decisions regarding his welfare. Ms Z believes this was a result of Mr X’s health conditions. However, the Council had to and still has to respect Mr X’s wishes.
26. The Council had no reason to doubt Mr X’s capacity regarding his will and it was for Mr X not the Council to decide who he did or did not want involved when it was written. The Council later assessed Mr X’s capacity regarding his property and financial affairs and was satisfied he had capacity.
27. Ms Z does not agree Mr X had capacity to agree to his will. She has placed a caveat on the will. That is a legal matter best resolved by solicitors and is not a matter for the Ombudsman to resolve.
28. I have seen no evidence the Council advised Ms Z there was a court order preventing her seeing Mr X. Any decisions regarding his LPA were made by Mr X and not the Council. Likewise any decisions made by Mr X about who he did or did not want contact with were his decisions which the Council and care home respected.
29. Ms Z says the Council told her it was dealing with Mr X’s finances when it was not. I will not investigate this further. This is because there is no evidence this caused Ms Z an injustice and as I have already stated the records show Mr X did not want Ms Z involved with his finances. If I were to find any evidence of fault in the way the Council supported Mr X with his finances this would be an injustice to Mr X not Ms Z. As Mr X has died we cannot remedy any injustice caused to him.
30. The Council accepted it did not support Mr X to update the DWP when he moved into the care home. It apologised. As I have already said we cannot remedy any injustice to Mr X now. There is nothing else I could achieve by investigating this further.

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Final decision

31. I have ended my investigation as there is nothing I could achieve by further investigation. This is because there is another body best placed to deal with Ms Z’s concerns or there is no injustice to Ms Z, and any injustice to Mr X cannot be remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman