John Kilbride had never been interested in the mundane realities of domestic life. He had been more interested in enjoying his life as a wanderer, sailing the seas and taking out his guitar with like minded musicians. Seeing different places, music, nature at its most raw and unpredictable, and the wonderful company of people in all their diversity was what his life had been about. It was not without its difficulties, of course, but he always found life in the New Town suffocating. With its shopping mall, its civic centre, its housing cut off by cul-de-sacs and underground passages, this was a town to herd people towards the commercial centre. He liked nothing better than getting on his bicycle and heading for the countryside. After he was banned from visiting his mother in Morrieburn care home he went out ever day to clear his head. It was as if he had already started mourning. He knew he was never going to see his mother alive again.
What John Kilbride found interesting in Ms Richards letter of 22 June 2011 was this sentence:
We understand her doctor has recently confirmed that she no longer has capacity to deal with her own finances or welfare. It was the word `confirmed` he found especially interesting. It suggested that somebody had asked for confirmation that his mother did not have capacity. Now who would that be just one day after he picked up the crooked Power of Attorney? Whoever that was they certainly got the word to Ms Richards at very high speed. Yet in other matters there was a decided lack of urgency. That in itself was quite revealing.
After John Kilbride made a subject access data request to see what Social Services had in their records about him which he was entitled to have, he was disgusted to find that Ms Richards had sent a copy of her letter to him to Social Services. She had done this without informing him. Ms Richards did this by email on 24 June 2011 and also stated in the email that she had not managed to get John Kilbride on the telephone and she would keep in touch. So there on the record was the evidence of a cosy relationship between Ms Richards, the woman who had stitched up Mrs Kilbride, and Social Services, the agency who had helped to incarcerate Mrs Kilbride in the care home. It was apparent that they continued to work hard to keep her there.
There was another extract in the records of Social Services which John Kilbride found interesting. It was dated 23 June 2011, the day John Kilbride was instructed to leave the care home. It was a record of a telephone call to Liz, the manager, at Morrieburn care home. All ready Misha McTavish and the manager were on first name terms. It recounts: "Son John has been stating his intentions to come and visit his mother" This was a strange report on a number of levels. There was no explanation why this was noteworthy unless the solicitor`s copy of her letter was supposed to explain it by implication. But the solicitor had not emailed the letter until the following day. By itself `intending to visit mother` does not seem such a big deal. So why would Misha McTavish put that down in a report? More to the point John Kilbride had been regularly visiting his mother which is one of the reasons why he was sent the letter by Ms Richards which advised him `not to visit his mother any further.` The only sense that John Kilbride could make of this was that `intending to visit his mother` was a covert message. Probably the true message was `ban John Kilbride from the care home,` but for some reason Misha McTavish was reluctant to put that on the record.
Unfortunately it took many months to gain access to the Social Services` file but when he gained access he could see nothing in the file which justified banning him from seeing his mother in the care home. There did not seem to be a willingness to work towards gaining the truth of the matter either. For instance, although Ms Richards had informed Misha McTavish that she would keep in touch, she never passed on a copy of John Kilbride`s response to her letter. But then that might have been embarrassing since John Kilbride had let the solicitor know that he had serious suspicions about the legality of the Power of Attorney. He had asked probing questions about it which she had failed to answer.
Photo by Robert Kerr
Within days after the ban John Kilbride decided he would consult a solicitor but he would not go to any solicitors in New Town. They occupied the same building in the centre and probably knew each other. As always there was the aggravating sense that nothing could be achieved in a hurry. Appointments had to be made and time wasted. The first solicitor he went to see was in the middle of Glasgow and he came away more dispirited than ever. The woman had checked up Ms Richards data on her computer and shook her head when she discovered that Ms Richards had been twenty years in the business. What he did find out was that he would not be entitled to Legal Aid to pursue the matter of visitation rights because it was considered his mother`s case, not his. When he explained to the solicitor that his mother was locked in the care home and could not pursue anything herself it did not make the slightest impression on her. Before he left the solicitor`s office he was given the address of the Mental Welfare Commission, which he had never heard of, and also the address of the Office of the Public Guardian. He was being sent on a wild goose chase. The deeper he dug the more rigged the system appeared to be to John Kilbride.
The next solicitor John Kilbride went to see was located in a little office in Govan. He found the solicitor a very relaxed and easy man to talk to, but he did not waste any time in letting John Kilbride know that he did not take on these kind of cases and that questioning the word of a solicitor in regards to the Power of Attorney was no easy matter. However, he kept the conversation going. Did he have the evidence? John Kilbride showed him the document and explained he had the evidence to show that his mother could write and did so within a couple of weeks of the Power of Attorney. This was in complete contradiction to what was stated in the document. Moreover, on the day the Power of Attorney was set up his mother was locked behind Morrieburn`s secure doors and the visitors book showed she never left the building. In any case, it would have been impossible for his mother to make an appointment with Ms Richards whilst she was in the care home. She had no means of communicating with the outside world and did not even have access to a telephone. In addition all her actions showed that George Kilbride was the last person she would have chosen as her attorney.
Because he was able to peruse the details in the document John Kilbride knew that his mother had not agreed to the Power of Attorney. It was never set up for that to happen. He had only picked up the Power of Attorney by accident. In that sense the plan had backfired somewhat and it was imperative to those involved that his mother and him should not be allowed to consult with each other. His mother was the number one witness in this case but she was to be kept isolated and ignorant. Those who had done the deed were now on the defensive and were proving themselves to be ruthless.
Before leaving the premises John Kilbride asked the solicitor about the role of the Office of the Public Guardian. Did he advise him to consult with them? After all they were supposed to regulate Powers of Attorney. The solicitor said that it would be the best thing to do and John Kilbride left with a sense that he could still do something, maybe. By this point it was becoming very clear to John Kilbride how reluctant solicitors were to point a finger at one of their colleagues.
In due course he received word back from the Public Guardian Office to his request that they investigate Mrs Gardner`s Power of Attorney. It was a swift response dated 11 July 2011.
Dear Mr Kilbride,
Thank you for your letter of 7 July 2011 concerning the Power of Attorney by Mrs Kilbride registered at the Office of the Public Guardian.
The Power of Attorney was registered at this office because it was presented as a competent legal document. Mrs Kilbride did not sign the Power of Attorney deed but it was signed on her behalf by a solicitor, and witnessed, following a declaration by Mrs Kilbride herself that she could not write - this is known as a "notarial execution". The Power of Attorney also included the necessary certificate stating that Mrs Kilbride understood the nature and extent of the Power of Attorney.
There appear to be no grounds for an investigation by the Public Guardian`s Office into this Power of Attorney.
Demolition of Stuart Hotel
The response was crushing in its impact. What did these people investigate if they just accepted the legality of any document on the word of those who had set it up? As for the `necessary certificate` that was signed by the same two people who worked in the same office. So in no sense did it act as corroborative evidence for the Power of Attorney. As for the mini lecture on "notarial executions" he did not need it. After all, it was just a term used by lawyers and did not address his concerns. What he noticed was that Mr Black made no attempt to draw him out by asking searching questions. He seemed more intent on closing down the discussion. John Kilbride wrote a rather emotional letter in return dated 12 July 2011.
Dear Mr Black,
I refer to your letter to me dated 11 July 2011 in connection with Mrs Kilbride who is my mother.
Early June 2011 my mother went to her bank, Clydesdale Bank in New Town, and in writing and in person changed the mandate, to remove George Kilbride so that he could no longer make withdrawals from her account. When George Kilbride attempted to make a withdrawal from my mother`s account on 21 June 2011 he was not able to do so, because the effect of my mother`s actions was to freeze her account.
Even without reading aids my mother is quite capable of writing and signing her name.
My mother is a very proud woman who would never claim that she was incapable of writing unless she was under duress. On 20 May 2011 we are expected to believe that my mother claimed she could not write, but she understood the legal jargon that was read out to her. My mother did not require this kind of assistance. She certainly understood what she was doing less than two weeks later, when she did write, in order to get on top of her own affairs herself. In doing so she made her wishes quite clear.
The claim by the solicitor that she knew my mother for years counts for nothing. She did not know my mother at all, because she did not even know my mother could write.
At the time the Power of Attorney was set up my mother was residing in Morrieburn care home. She did not approach the solicitor for this and was in no position to do so. At Morrieburn she had no access to a telephone, no reading aids, writing paper, address book, money and could never have got herself through the care home doors unaided. I still do not know who approached the solicitor but it could not have been my mother. Whoever it was did it behind my mother`s back.
In the document registered with the Office of the Public Guardian there is no indication of any of my mother`s personal wishes. Her identity is not present in any of the writing. She has four children, four grandchildren and numerous great grandchildren she has made contributions towards, for example, for birthdays, college funds and so on. There is no mention of any of them. The writing in the document is so dry and lacking personal significance that it could never have come from my mother.
Not only that, but the Power of Attorney gives an excessive amount of power to one person.
For example: Section TWO (a) states:
To decide what care, services and accommodation may be appropriate for me, including power to decide where I should reside (whether permanent or otherwise) and to return or authorise others to return me to my place of residence should I leave the same without consent of my Attorney.
The one time my brother George Kilbride visited my mother at Morrieburn care home she was so angry with him she chased him away with her walking stick. She had entered Morrieburn care home voluntarily and believed she would have an assessment to determine if she could have sheltered housing. She wished to remain living as independently as possible and wanted control over her own affairs. She was angry whenever she believed she was being abandoned in Morribeburn. Yet we are expected to believe my mother agreed voluntarily to George Kilbride having the power to incarcerate her in Morrieburn, against her own will. I do not know any old lady who would give anybody such power over herself. I do know my mother and she would never have wished that, and would have found it insulting.
The Power of Attorney does not take account of my mother`s circumstances:
For example: Section TWO (c) and (h) states:
(c) To decide with whom I should consort and to make decisions about my dress, exercise, diet and personal appearance.
(h) To pay for any item (including a motor vehicle) equipment or services which, in the sole opinion of my Attorney is for my benefit, the said power shall include power to pay for, repair, improve or replace any such item, equipment or service.
I have been barred from seeing my mother but it was not my mother who barred me. Yet we are expected to believe that my mother voluntarily agreed that George Kilbride should be able to make such decisions for her. I was my mother`s one regular visitor and she enjoyed my visits. Again my mother would have found this insulting - even infuriating. She never wanted to feel cut off and lonely.
My mother has a daughter, Irene Kilbride, always her favourite, who is much better equipped to make decisions about my mother`s dress and appearance. Yet we are expected to believe that my mother picked her son, George Kilbride, to do this job. It is absurd.
Irene Kilbride, and myself, have driving licences and cars. Yet we are expected to believe that my mother voluntarily agreed that George Kilbride, who does not have a driving licence or car, should have the power to pay for a motor vehicle and its repair. Common sense says otherwise.
These are some of the reasons my mother`s signature does not appear on the Power of Attorney.
I was told by the social worker involved that George Kilbride was going to try to get the Power of Attorney. I was not told that my mother was actively engaged in doing this by the social worker. My mother had made her wishes perfectly clear to me. She did not want George Kilbride to be involved in her affairs and that is why she changed the mandate.
My request by letter that I be allowed to be with my mother during any assessments was ignored by the care home, a request that had been endorsed by my mother`s doctor, Dr Hunter. My mother always got anxious and was never at her best with strangers.
Since George Kilbride has received the Power of Attorney I have been barred from seeing my mother and my mother is now defenceless. She entered Morrieburn care home voluntarily on the understanding that it was for respite and that there would be an assessment for sheltered housing. She wanted to live as independently as possible and to have control over her own affairs, and with the right assistance this might have been possible. Since entering Morrieburn care home my mother has lost everything including the right to make her own decisions. She has lost her right to see me. She sits vacantly in a chair because nothing happens. All of this took place in less than two months.
Much of what has been done to my mother has been done behind her back and she was never supposed to know. Her copy of the Power of Attorney was sent to Burns Park, her previous address. She has been locked out of this flat. The copy of the Power of Attorney was not sent to Morrieburn care home where she actually resides. I was barred before I could actually discuss it with my mother.
I do not believe the Power of Attorney has been done lawfully, nor is it in my mother`s best interests. There has been a serious breach of my mother`s human rights.
John Kilbride also wrote to the manager of the care home and to the social workers but they never replied to his letters. At least he could never accuse the Office of the Public Guardian of not responding. They always replied in reasonable time but he could tell that it was going to be a battle of words. They had no intention of accepting his concerns about the Power of Attorney. In his next response Mr Black begins:
The main concerns that you have with the Power of Attorney appear to be with the notarial execution, which I explained in my previous letter to you, and the general circumstances surrounding the granting of the Power of Attorney by your mother.
Well he got that in one. Yes John Kilbride had concerns about the notarial execution: That the solicitor had signed the Power of Attorney on behalf of his mother, when his mother could write. He did not believe his mother was anywhere near the solicitor when the document was processed and pointed out that his mother had never left the care home and could not have made an appointment with the solicitor. How difficult would it have been to check these matters? But obviously Mr Black would rather sit in his office and believe an unlikely scenario: that Mrs Kilbride had set her own self up so that she would be incarcerated in the care home and, at the same time, had lied and said she could not write.
In my previous reply to you I said that there did not appear to be grounds for an investigation by the OPG into the granting of your mother`s Power of Attorney (POA) Although you have now written at some length and make a number of points in your letter my view has not changed. I will explain why.
You say that your mother has full mental capacity and a full understanding of her actions. You are therefore suggesting that your mother was under undue influence or duress to agree to this POA. The matter of undue influence is addressed in the certificate that must accompany every POA when it is submitted to the OPG for registration. It may help if I explain about this certificate.
Oh please don`t explain the certificate John Kilbride thought! So they were going to be going round in circles getting nowhere! Mr Black did not take on board the fact that Mrs Kilbride had changed her mandate at the bank two weeks after the Power of Attorney was set up. What this showed was that she knew George Kilbride was interfering with her bank account and she put a stop to that. That could so easily have been checked. What she did not know was anything about a Power of Attorney otherwise she would have aimed in that direction. In other words she had the capacity to understand that George Kilbride was financially abusing her and did something about it, backing that up with her signature. Does this not contradict the Power of Attorney which gives this same George Kilbride complete control over her affairs and is that not a little bit worrying?
Not at all according to Mr Black who would rather explain the certificate which actually explains none of it. Mr Black also ignores John Kilbride`s comments that Mrs Kilbride could never have made an appointment with the solicitor. What Mr Black cannot dismiss with legalese he ignores. As for duress John Kilbride was speaking hypothetically but that seemed to fly straight over Mr Black`s head. How convenient because he certainly went on to make a meal of it!
The certificate can be completed and signed by either a solicitor or a medical practitioner. In your mother`s POA the certificate was signed by the solicitor who also did the notarial execution. The certificate states that the solicitor interviewed your mother immediately before the notarial execution, that the solicitor was satisfied that at the time the POA was granted that your mother understood its nature and extent, and that this was because of the solicitor`s knowledge of your mother. I am not aware of a claim that the solicitor had known your mother for years. The solicitor may have gained her knowledge of your mother from the interview. The certificate also states that the solicitor has no reason to believe that your mother was under undue influence in granting the POA. You appear to be implying that this was not the case and also say that you think your mother was under duress when declaring that she was unable to write.
What John Kilbride had informed Mr Black was that his mother was a very proud woman who would never say that she was unable to write. The only circumstance he could imagine of that happening would be if she was under duress to sign something she did not want to sign. He was informing Mr Black about his mother`s personality, giving further weight to his suspicions that there was something wrong with the Power of Attorney. He never claimed that this actually happened because he had serious doubts she was ever there in front of the solicitor. As for the certificate it was the solicitor who signed it. It was the solicitor who claimed she interviewed Mrs Kilbride and found her to have capacity. It was the solicitor who claimed his mother said she could not write. It was the solicitor who signed the Power of Attorney. It was the solicitor who did all of it. So what if there was a certificate, it counted for nothing. This was the same solicitor who would not answer any of his questions. As for Mr Blacks` comments explaining away the solicitor`s claim that she knew Mrs Kilbride for years, was he calling John Kilbride a liar? He had the letter from Ms Richards in his possession which stated this very thing. How about checking these things out? John Kilbride was getting more frustrated and angrier by the minute. Did these people not realise they were playing around with human lives?
What you are saying is contrary to what the solicitor has stated, and so is an allegation about the integrity and conduct of a solicitor. The OPG cannot act on your letter without evidence to substantiate your allegation. In the first instance you may wish to consider making a complaint about the solicitor concerned - this should initially be made directly to the firm where the solicitor works. Further information about making a complaint about a solicitor may be obtained from the Law Society of Scotland in Edinburgh. The website address of the Law Society is: www.lawscot.org.uk.
Well John Kilbride had already written to Ms Richards and been given no satisfaction. The OPG cannot act without evidence he was now being told. So raising a concern and explaining the matter in some detail is not enough and they will not investigate or take action. He must find the evidence himself, an almost impossible task, since he does not have authority, as the regulator has, to call for evidence. Whoever set this system up knew what they were doing - tying everybody in knots. As for the Law Society of Scotland he had heard nothing good about it, but here he was being sent off to start writing letters to yet another organisation. How many were there sitting in offices doing nothing?
You mention that the wording in the Power of Attorney is not the language your mother would use. I can advise you that the majority of POAs are drawn up by solicitors and the wording in nearly all POAs is along the lines of that in your mother`s. You also comment that there is no mention of children or other family members. It would be unusual for family members to be specifically named in a POA, unless as an attorney. I do note that there is provision in your mother`s POA for her attorney to make gifts to family members.
Gifts to himself more like, knowing George Kilbride. What John Kilbride said in his letter was that his mother`s identity and personality did not appear anywhere in the Power of Attorney. So this was less a haggle over words and more about the ideas contained in the document. Again he was speaking about his mother from the point of view of someone who knew her personally. She could not possibly have agreed to a document giving away every single right she had over herself - just not possible. If these were the kind of documents customarily seen and sent in by solicitors to the OPG then Mrs Kilbride was not the only one who had been stitched up. John Kilbride was beginning to see a bigger picture and it was terrifying.
You say that you have been barred from seeing your mother, but do not explain why this is so. The welfare side of the POA cannot be exercised until the granter has lost capacity, which you stated was not the case with your mother. Therefore it is your mother who should decide who she wishes to see or not to see.
John Kilbride had explained that his mother knew that George Kilbride was financially abusing her and took action to stop him and knew what she was doing. He was not making claims about full capacity assessments weeks later which allowed his brother to bar him from the care home. Of course his mother had the right to decide for herself who she wished to see. The point was this right had been taken away from her by a fraudulent Power of Attorney.
I wondered if you have discussed the POA with your brother George and also the social worker you referred to in your letter. They may be able to assist you in answering some of your concerns.
Was this man being deliberately facetious?
Finally if your mother decides she is not happy with the POA she could always revoke it. The law makes provision for a granter who has full capacity to revoke their POA. If however you feel that your mother would be unable to revoke the POA for whatever reason then please revert to us and we can reconsider our position. If a granter has lost capacity then it would be too late for revocation. The OPG cannot give legal advice and so I would suggest she consult a solicitor if she wishes to revoke the POA.
John Kilbride was suspicious. They will reconsider their position if his mother is unable to revoke the POA for whatever reason. Why did he not say that in his first letter when it could have made a difference? Ah! Except if she has lost capacity. So he knew about the capacity assessment. What a devious man!
I hope this reply is helpful.
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