“Thrown in Jail at 71” – Ann-Marie Aston Comments

The Wilkes Partnership, Solihull, Law, Solicitors, Birmingham

Ann-Marie Aston, Senior Associate Solicitor with the Wilkes Partnership LLP, Court of Protection team picks up the thread of the above headline which appeared in Saturday’s Daily Mail.

The article concerned a case that was heard by the Court of Protection earlier this year but which was only been reported last week.  The case concerned an elderly gentleman who was born in Madeira but who had lived in the south west of England for some 50 years.

In 2014 he had the onset of dementia and Mrs Kirk took him from his home in Devon to go and live with her in Sussex.

Social workers advised Mrs Kirk that the gentleman should be in a care home, presumably because his needs were greater than what could be provided for by Mrs Kirk and possibly home care facilities at Mrs Kirk’s home.  She was also advised that he should move back to Devon as that was where he had settled and where all his friends were, including his beloved cat.

Following the social worker’s report, and for reasons which have not been disclosed, Mrs Kirk took the gentleman to his native Portugal and it appears that he is now resident in a care home on the Algarve.

Social services applied to the Court of Protection for an order that the gentleman lacked capacity to decide for himself where to live and that it was in his best interest to return to live in a care home in the south west of England.  It appears there is a technicality in Portugal such that before the gentleman can be released from the care home, Mrs Kirk is required to sign an authority.  Mrs Kirk has refused to sign such an authority.  Consequently, the Court of Protection after many orders and hearings, attached a penal notice to the order.  This meant that as Mrs Kirk refused to sign the authority, she was sent to prison.

We are not allowed to know the relationship between the gentleman and Mrs Kirk, but what this case highlights is how important it is to make known your wishes and feelings about where you would like to live, perhaps in the last years of your life when you have lost the mental capacity to decide at that point.  It could be the case that Mrs Kirk was acting on words said to her by the gentleman but as there appears to be no legal document in place to say this, Mrs Kirk has found herself in hot water.  The judge acknowledged that Mrs Kirk had “deeply held and sincere beliefs” as to the gentleman’s best interest and that she is “genuinely concerned about his welfare”.  But as Mrs Kirk refused to comply with the court orders and sign the authority for the gentleman’s release from the Portuguese care home, the judge said he was left with “no alternative” but to pass a sentence of imprisonment.

Many situations arise, not necessarily to the degree of seriousness in this case, but where family members and local authority social services departments are in dispute about what is in the best interest of a friend or relative.  This is where it is important to appoint an attorney under a health and welfare lasting power of attorney.  Such a document can include wishes and feelings as to where you would prefer to live, so your attorney(s) can legally decide for you, if you lack the mental capacity to decide for yourself.

If you would like advice on the issues raised in this piece or are interested in putting a lasting power of attorney in place, please contact Ann-Marie Aston of The Wilkes Partnership LLP on aaston@wilkes.co.uk or 0121 733 8000.