UK - Office of the Public Guardian (OPG)
News 25 10 2009: Secret court seizes some £3.2bn from the elderly. A secret court is seizing the assets of thousands of elderly and mentally impaired people and turning control of their lives over to the State - against the wishes of their relatives. The cases involve Civil Servants from the Office of the Public Guardian (OPG) having some 300 staff and costing about £26.5million a year to run, which last year took some £23million in fees directly from the bank accounts of those struck down by mental illness, involved in accidents or suffering from dementia – the same Organisation having to deal with some 3,000 complaints in its first 18 months of operation.
In many cases relatives have to complete a 50-page form giving huge amounts of personal information about themselves, their family, their own finances and their relationship with the person they wish to help care for after which the OPG then charges an annual fee of some £800 to supervise the activities of the deputy, whether they are a family member or a professional appointee..
In one case a lady has been banned from looking the affairs of her mother. About two years ago her 76-year-old widow’d mother started to become forgetful and without her authority the local Council were appointed to run her mother's affairs. Although applying to Court to take over the running of such affairs from the local authority the Court rejected her appeal – even given that other relatives had supported her action in writing – this concluding that the Lady is not a fit person to care for her own Mother. The Council did confirm that Officials had let themselves into the elderly woman's home uninvited and unaccompanied by a family member to which a spokeswoman said: 'The court has already deemed our action appropriate.'.
In another case regarding a children's author she was forced to get permission from a court to use family funds after an accident left her journalist husband in a coma. They have been married for over 20 years, had written Wills and both named on the deeds to their property. Regarding her own Mother Council officials searched her flat while she was asleep in her bedroom. They told me they had to retrieve documents so they could do their job. But someone should have been with my mother. It is unbelievable that they can behave in this way.'
(1) The OPG recommends that every adult considers making a lasting “power of attorney”.
(2) Reporters on the story refer to “Living Wills”– ie: (A) Only 60,000 people in Britain have registered these 'living wills' with the authorities Without this document, relatives must apply to the courts and the anonymous OPG, part of the Ministry of Justice based in an office block in Birmingham, is required to look into the background of carers to decide if they are fit to run the ill or elderly person's affairs. (B) The officials are legally required to act in cases where people do not have a 'living will', or lasting power of attorney, which hands control of their assets over to family or friends.
(3) The Mental Capacity Act 2005.
How interesting item (3) be above: Of the key principles in this Act one of them states that one must firstly “prove” beyond doubt that an Adult be incapable of making their own decisions (see A - below) while, given that proof, one then has to provide evidence that all practicable help has been given before anyone can treat that person as being properly incapable of making self decisions. Then one has the proviso “Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests” – would this include paying the salary of a Solicitor as oppose to a competent family member whom actually knows and cares about that Person(s)?. Admittedly there are “some” whom would take advantage of incapacity yet should all be treated as wrong-doers to be aligned with a Gov that fails to get anything right!.
LIVING WILLS - The “living will” is the oldest form of advance directive concerning Healthcare.
1969 Living Will - first propsed by Louis Kutner an <?xml:namespace prefix = st1 />Illinois attorney in a Law Journal. He devised a way for an individual to announce his/her health care desires when no longer able to express them himself. Because this form of “will” was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed a “living will.”. It could be used to forbid the use of various kinds of burdensome medical treatment or express wishes about the foregoing of food and water if supplied by tubes or other medical devices. The living will is only used if the individual has become unable to give informed consent or refusal due to incapacity.
00 00 1980’s Late: Many people remained unaware of the need for advance directives. In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents. The public’s response was to press for further legislative support.
00 00 1988 One of the earliest third- generation advance directives- the Values History. Created at the Institute of Public Law, University of New Mexico School of Law. It is a “two-part advance directive instrument that elicits patient values about terminal medical care and therapy-specific directives. The goal of this advance directive is to move away from a focus on specific treatments and medical procedures to a focus on patient values and personal goals.
00 00 1990 Patient Self-Determination Act into being. This was to address the unawareness problems (see 1980’s) by requiring Health Care Institutions to better promote and support the use of advance directives – Living Wills. Key deficitswere soon discovered like limited scope and individuals writing out their wishes in ways that might conflict with quality medical practice. Ultimately, it was determined that a living will alone might be insufficient to address many important health care decisions.
28 07 2009 Barack Obama announces that he has a living Will. This was to encourage others to do the same. The announcement followed controversy surrounding proposed health care legislation that included language that would permit the payment of doctors under Medicare to counsel patients regarding living wills, sometimes referred to as the "infamous" page 425.
The Mental Capacity Act 2005
There are five key principles in the Act:
(A) Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
(B) A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
(C) Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
(D) Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
(E) Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.