Moving a relative in care between Scotland and England – the importance of Power of Attorney or Guardianship Orders

INSIGHTS

With an increasingly ageing population, more and more people find themselves in the situation of looking after a relative who no longer has the capacity to care for themselves. But what do you do if this means you have to move the relative in question from England to Scotland, or vice versa, to be nearer their family?

Scotland and England have different legal jurisdictions, and the courts have recently shown that without having a Welfare Power of Attorney or Guardianship in place, you will have difficulties accessing the appropriate care funding when attempting to move someone between the countries.

This could mean that the local authority in which the relative now lives will need to be reimbursed for providing care home services to your relative – leading to a number of financial and legal consequences which all families can do without, especially at a time when looking after their welfare is your prime concern.

Thinking ahead and taking the simple step of putting a Power of Attorney in place, just in case, can help to avoid all of this.

A case in point

A recent decision by the Court of Session demonstrated a failed attempt by an English local authority to challenge an earlier decision of the Scottish Ministers in such a situation.

Mrs R was living in her own home in Milton Keynes when she was diagnosed with dementia in 2005. Her health deteriorated and in December 2008 she was admitted to a specialist unit within Milton Keynes.

Subsequently an assessment determined that Mrs R lacked capacity to decide where she should live, and an order in January 2009 appointed the holder of the office of finance manager of Milton Keynes Council as deputy for her property and affairs.

Mrs R’s daughter decided that she wished for her mother to live closer to her and identified Adam Wood Care Home in Musselburgh (and within East Lothian Council) as a suitable home. In late February 2009, Mrs R was discharged from the specialist unit in Milton Keynes and driven by her daughter to Adam Wood Care Home, being admitted there on the same day. Mrs R continues to live in Adam Wood Care Home.

The costs involved in Mrs R’s care there, were arranged privately between her daughter and the care home. Later, in June 2009, Mrs R’s daughter was appointed deputy for her property and affairs, replacing the previously appointed finance manager of Milton Keynes Council. In July Mrs R’s needs for care services were assessed by East Lothian Council in accordance with the 1968 act, who concluded that she required residential accommodation with nursing. East Lothian Council assumed responsibility as “authority of the moment” for funding of this care and thereafter made payments to Adam Wood Care Home. Mrs R’s home in Milton Keynes was later sold in 2010.

The decision – how things get complicated

The Scottish Ministers had earlier this year decided that no change of Mrs R’s “ordinary residence”, in accordance with the Social Work (Scotland) Act 1968, had occurred. Despite her move, “Mrs R” remained ordinarily resident in Milton Keynes and therefore East Lothian Council were entitled to be reimbursed for her care home costs.

The initial decision and ensuing judicial review turned mainly on interpretation of the 1968 act itself, a Scottish Government Circular and previous case law. In one particular case, Shah v London Borough of Barnet, it was stated “Residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. And there must be a degree of settled purpose”.

In challenging the original decision, Milton Keynes Council relied on another case (R Waltham Forest London Borough Council ex p Vale) which concerned the ordinary residence of a woman who was mentally incapable of deciding where she should live and had been living with her parents for a few weeks. In that case it was stated “Where the subject is so mentally handicapped as to be totally dependent upon a parent or guardian, the concept of her having an independent ordinary residence of her own which she has adopted voluntarily… does not arise. She is in the same position as a small child. Her ordinary residence is that of her parents because that is her ‘base’…” Milton Keynes Council’s further arguments included that policy reasons supported the change of Mrs R’s ordinary residence. Not only was it more convenient for service users to liaise with the authority in which they were living, but moreover if the existence of a court order or power of attorney authorising welfare decisions on behalf of someone lacking capacity was critical in determining whether a change of ordinary residence had occurred, this would amount to discrimination against those who were incapax and without a guardianship order, power of attorney or similar.

With regard to the primary consideration of the definition of ‘voluntary’, Milton Keynes Council argued that this should be given its ordinary meaning – “not compulsory”. However the Scottish Ministers and East Lothian Council considered that Mrs R had been living in a place by the choice of her daughter and the daughter’s intention that her mother live in East Lothian was not the same thing as Mrs R herself voluntarily adopting this. They considered ‘voluntary’ to mean something done of a person’s own free will or choice and argued that it was relevant to question whether there could be a settled purpose to live somewhere in circumstances where there was a lack of capacity sufficient to choose a place and where the place was therefore chosen by another. Since there was not full mental capacity here, it was inappropriate to conclude from simply residence at a place that there must be a settled purpose to live there.

The Court of Session agreed that the question of whether there had been a change in Mrs R’s ordinary residence must involve an assessment of whether the move to a new residence had been voluntary. Notably, the court distinguished Mrs R’s situation from situations where there is legal authority on the person making the decision – stating that the absence of any legal authority on the part of her daughter to make decisions regarding her welfare, at the time the decision to move was made, was “fatal” to any possibility of a finding that there had been a change of her ordinary residence.

What does this mean for families?

This case shows just how important it is to plan ahead.

If Mrs R had taken the simple step of putting a Power of Attorney in place – just in case – which appointed her daughter as attorney, or if her daughter had only made the decision after being granted authority (e.g. as guardian) to make decisions about her mother’s welfare, then her decision would have been more absolute and the legal and financial consequences involved here may have been avoided.

Get in touch

Harper Macleod’s Private Client team can assist you with preparing Financial and/or Welfare Powers of Attorney or, if required, putting a Guardianship order in place. To find out more please get in touch.