Often on his walks or cycle runs through various towns he would see the sad little care homes that were springing up everywhere. Never a face at the window or any sign of life. Some of these new buildings could be nestled amongst houses busy with children playing in their gardens but the care homes themselves still seemed to be separate from the surrounding communities.. There was no to-ing and fro-ing. One in particular he remembered with its high metal rails with spikes at the top and huge gates which could only be opened by keying in the appropriate number. He understood it better now. It was not designed to keep the inmates in or the robbers out. There were angry relatives like himself stitched up by fraudulent POAs on the outside and dark secrets inside these buildings that had to be defended.
As he wandered through the Calderglen he thought some more about Mr Black`s response. This pompous official had glided past the fact that his mother`s signature did not appear on the POA although John Kilbride knew that his mother could write. He did this by explaining a notarial execution which, as far as John Kilbride was concerned, was merely his way of sidestepping the issue and not an honest response at all. It was insulting. Mr Black knew what he was doing thought John Kilbride and had no intention of addressing his concerns in a straightforward way. As for Ms Richards, the solicitor, it should have been obvious that she was lying. She claimed that his mother said she could not write. She cunningly left the matter of why Mrs Kibride could not write hanging in the air. It should have raised suspicions but was treated by Mr Black as a fault of John Kilbride (because he did not understand the notarial execution) rather than a fault of the solicitor.
John Kilbride had been forewarned by the inexperienced Misha McTavish that his brother was going to TRY to get a power of attorney. Then again it might have been the case that Misha McTavish believed at the time that every member of the family wished to dump his mother in the care home. He could not account for her slip. But John Kilbride suspected, that like him, his brother George had never heard of such a thing as a power of attorney before meeting the social worker. Who else but a social worker working in Adult Services and well acquainted with these devastating documents could have instructed his brother? This whole system was beginning to look rotten to the core and it was discouraging to John Kilbride to think that those in the Public Guardian Office seemed to be a part of it. Mr Black certainly did not rush to the rescue.
When John Kilbride made enquiries at the Housing Department in the Civic Centre regarding his mother`s tenancy he was informed that she could not keep her flat for more than a couple of months whilst sitting in a care home. Some of her pension was now to be used to pay for her care and her house would be taken from her. Well that was one way for the Council to deal with the housing shortage. Why would an 89 year old woman imprison herself in a care home, defer her application for sheltered housing as if she had all the time in the world, and risk losing her home? She did not. All of that was done to her and time was running out.
It was revealing to read in the Performance Inspection: Social Work Inspection Agency: South Lanarkshire Council 2006 HERE the following paragraph about corporate working:
Again, the views of staff reinforced this positive view of corporate working relationships. From the survey we conducted, most of the staff agreed that their team had good working relationships with education and housing colleagues. The benefits derived from this were not confined to social work. For example, social work featured as a core service in the council's homelessness strategy. We found that housing had worked with its key partners, including social work in the redesign and streamlining of services to avoid duplication. Moreover, we were told that the local housing strategy had been commended by Communities Scotland on how it addressed need across all care groups and its clear focus on achieving better outcomes for older people.
The deferment of his mother`s application for sheltered housing, and the registration of the Power of Attorney were both dated 16 June 2011 and delivered to Mrs Kilbride`s flat whilst she was locked in the care home. A nice example of what can be achieved through corporate working relationships.
Ms Richards had dated the document 20 May 2011 and craftily put the place of the meeting as New Town without specifying exactly where in New Town she was supposed to have seen his mother. John Kilbride had explained to Mr Black that his mother was locked in the care home at this time and could never have left the building without assistance. In fact, it would have been impossible for his mother to have made an appointment with Ms Richards. But this was a matter Mr Black did not address at all. No doubt he could not, but no investigation was forthcoming. So it was galling to John Kilbride to be informed by Mr Black that his mother could revoke the Power of Attorney if she wanted. This man was not paying attention.
No she could not revoke the Power of Attorney. His mother was locked in the care home and John Kilbride had been banned from seeing her and therefore could provide her with no assistance.
Despite these setbacks John Kilbride felt a sense that something had been achieved because of Mr Black`s statement in his second letter:
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.
It was true that John Kilbride had not provided evidence to substantiate his allegation hoping that Mr Black would make this very point. He now intended to provide a copy of the mandate for the bank, signed by his mother 9 June 2011, less than three weeks after the solicitor signed the POA, as well as pointing out to Mr Black that his mother never left the care home on the day the Power of Attorney was set up and the evidence for that was in the visitors book in Morrieburn care home. Having made the statement that the Office of the Public Guardian cannot act without evidence, how would it be possible for the OPG not to act once evidence was provided? He needed to pin these people down.
It was fortunate for John Kilbride that his friend Jane Connelly was free of commitments over the summer of 2011 and patiently listened to his ramblings. The way he was feeling overwhelmed and out of his depth it would have been all too easy to down a bottle of whiskey and end up disgracing himself. She could be harsh but he could always depend on her to be straight with him and give him a well considered opinion. It was sorely needed. "Don`t let your mother down," she said, "And don`t play into their hands." It was what he feared and she had got it in one.
It was true that John Kilbride had not provided evidence to substantiate his allegation hoping that Mr Black would make this very point. He now intended to provide a copy of the mandate for the bank, signed by his mother 9 June 2011, less than three weeks after the solicitor signed the POA, as well as pointing out to Mr Black that his mother never left the care home on the day the Power of Attorney was set up and the evidence for that was in the visitors book in Morrieburn care home. Having made the statement that the Office of the Public Guardian cannot act without evidence, how would it be possible for the OPG not to act once evidence was provided? He needed to pin these people down.
It was fortunate for John Kilbride that his friend Jane Connelly was free of commitments over the summer of 2011 and patiently listened to his ramblings. The way he was feeling overwhelmed and out of his depth it would have been all too easy to down a bottle of whiskey and end up disgracing himself. She could be harsh but he could always depend on her to be straight with him and give him a well considered opinion. It was sorely needed. "Don`t let your mother down," she said, "And don`t play into their hands." It was what he feared and she had got it in one.
Another response from Richards and Taylor, solicitors, came on 20 July 2011.
Dear Mr Kilbride,
We refer to your letter of 12 July 2011. Please note that Ms Richards has acted as your mother`s solicitor for many years and is satisfied that the Power of Attorney which has been registered in favour of your brother George is valid. If you seek to challenge its validity, you should seek separate legal advice on this matter.
We note it is accepted you withdrew £500 from your mother`s account. The changing of the locks was unnecessary we call on you to provide an accounting of these funds and to make a full refund.
Please note that following your mother`s decline in health her doctors, other health professionals and social worker have had your mother`s best interests in mind and on that basis advised your brother George to instruct refusal of contact between you and your mother meantime, given its effect on her.
What effect on her? Every letter was like a slap in the face and what a nerve these people had! Of course, Ms Richards was satisfied the POA was valid. She signed it. Lies always beget other lies. As for getting separate legal advice, without legal aid, that was impossible. It was Mrs Kilbride herself who was at the bank and made the withdrawal as she was entitled to do, just as she was entitled to hand him the money in order to change her lock. Actually it was none of their business. How dare these people say that it was unnecessary! Mrs Kilbride had been locked out of her own home and was under threat of losing everything. Too bad that John Kilbride had inadvertently picked up the Power of Attorney and caught them out!
The last paragraph John Kilbride found particularly infuriating. According to the solicitor, Mrs Kilbride`s doctors, other health professionals and the social worker had advised George Kilbride to instruct refusal of contact between John Kilbride and his mother. Yet he had only seen Misha McTavish once in the Village care home when his mother was arguing that she wanted home and did not need looked after. Some time after that the social worker telephoned him and told him she would no longer be communicating with him. So what was she playing at? It was at that point the game had started because she inadvertently told him his brother was going to try to get a power of attorney - the one that appeared later without his mother`s signature. Wasn`t that his mother`s business? Of course it was. That was the law. As for the doctors and other health professionals who were they supposed to be? They could not have had Dr Hunter amongst their number because Dr Hunter never saw his mother and him together. Their joint appointment had been cancelled. He saw no other doctor in the care home. And why did they not ask Mrs Kilbride what she wanted, instead of advising the son who never visited her, to instruct refusal of contact with her only visitor? Sometimes John Kilbride`s head felt like it would burst with the audacious injustice of it all.
Of course, it was a load of nonsense. If the solicitor was to be believed it meant that on the day of the capacity assessment which was the same day the solicitor wrote to him, at least three different people were supposed to have contacted his brother at work in the Post Office to advise him to instruct refusal of contact, because it was only then that George had the powers to follow such advice. Why such urgency without making the allegations of `effect on her` more specific? What rubbish! Well they needed to get hold of George Kilbride bright and early before he started his rounds as a postman. Unbelievable. These people just made it up as they went along. John Kilbride understood that. For they could never have allowed his mother and him to get together because Mrs Kilbride was the number one witness in regard to the fraudulent Power of Attorney. It did not matter that they knew he knew that. It did not matter what the effect was on a helpless old woman. They were brazening it out and getting away with it.
"No," said Jane Connelly, in response to one of John`s comments. "They haven`t exactly crawled out the woodwork. You`ve blasted them with full cannons ablaze because you picked up the Power of Attorney. It was never planned that way. You`re enemy number one. Who paid for the Power of Attorney and who paid to register it, John?" Jane asked. "There has to be a paper trail or a digital trail. That`s another little matter that should have been investigated."
John Kilbride had not thought about that but agreed that no solicitor would work for nothing. His mother, sitting in the care home, with pennies in her purse had been in no position to pay for anything. Residents in Morrieburn care home were not allowed money. Yet somebody must have paid Ms Richards for her work and somebody must have paid the registration fee. John Kilbride guessed that it would have been George with a portion of the money he had all ready fiddled from his mother`s bank account. Any trail would lead back to George he believed.
Then he remembered the communication he had received from the OPG in connection with his own enquiry about how to set up a power of attorney. He had been informed that he must send the power of attorney along with the certificate and a completed registration form signed by the attorney(s). Given that George Kilbride was his mother`s attorney did this mean that he had signed a registration form? So in the bundle that the Public Guardian received there would be a Power of Attorney without his mother`s signature on it and a registration form signed by George Kilbride? How interesting. The deeper he thought about it the more likely it was that George Kilbride had been in the solicitor`s office. Who made that appointment and how did they make it? Whoever it was could this be confirmed in an appointment book?
In answer to his enquiry John Kilbride was also told that cheques should be made payable to the Scottish Court Services. Did this mean that Scottish Court Services received a cheque from George Kilbride in connection with his mother`s Power of Attorney or were they paid by other means? The answers to some of these questions would have allowed him to dig deeper but instead he was looking at a brick wall and there was no help coming from the regulator. It was obvious that Mr Black`s role was to explain everything away rather than to ensure that things were in order.
Sometimes friends would ask him when he moaned about the situation, as he often did, why he did not march straight into the care home and remove his mother? Then he had to explain that following the capacity assessment 22 June 2011 which activated the Power of Attorney, his mother was no longer allowed to make her decisions - although strictly speaking it should never have worked that way - and the police would have been called to ensure that she remained in the care home. With that bit of paper from the solicitor and an allegation from the care home manager that John Kilbride was causing a disturbance it would have made no difference what he said, the care manager`s word would have been accepted and the incident would have gone down on the record. He could not risk such an eventuality because it would have made it more difficult to find a way of resolving the situation. But that was the problem. How to do that because there was no help from any source?
It was getting more desperate with every passing day. Living only a short walk away from his mother`s flat he would often find himself heading in that direction peering at the front door looking for signs of life. He did not want the junk mail to pile up and give the game away. It was always eerily quiet but he dreaded seeing a new set of curtains at the window to break the spell. When he looked inside he could see that the plants on the window sill were dying and there were boxes on the floor filled with various artefacts. The flat was being systematically cleared out and his mother was locked in the care home not knowing a thing about it. How could they do this? It was even worse when he discovered that one of the wheelie bins was three quarters full of empty wine bottles. So there were parties as his family looted. One day his mother`s curtains were drawn tightly shut and he could no longer see inside. His last communication had been from his youngest brother Robert telling him that he would be arrested if he went to see his mother. Now they were all hiding from him thought John Kilbride. They had a lot on their conscience.
It was the lack of communication that confounded his difficulties. Neither the social worker nor the care home manager would answer his letters. His family were in hiding and he was cut off from his mother. Since he lacked facts and detail about what was going on it was difficult to complain about it. Jane Connelly considered the matter. "They know what they`re doing. That`s why the social worker told you she would no longer communicate. Because she let you know that writing letters and phoning would be a waste of time, she was more or less telling you to give up before you even started. Cutting you out of the loop makes it impossible for you to do anything. That kind of tactic is not about offering the public a service, is it? It makes you wonder about their training and why they would be trained to do this sort of thing."
"As more care homes are springing up all over the place." John added. "All systems in place to make it easy to shuffle the elderly out of their houses and on their way."
John Kilbride did learn about the Data Protection Act 1998, a piece of legislation which allowed him to request a copy of his personal data that the social worker held in her files about him. What he needed to know was why the social worker had advised his brother George to ban him from seeing his mother and whether or not that was true. That information must surely be in her file. As it was it was impossible to contest information he knew nothing about. The problem with having to pursue information this way was that it was a very slow process. Eventually he did receive certain extracts from the social worker`s file some of which he has all ready discussed:
The first extract calls John Kilbride a linked person. (son, keyholder). Then there is mention of the visit 3 May 2011 at the Village care home where he first saw Misha McTavish talking to his mother and sister Irene. It states:`Visit to Village care home arranged for 2 pm today to see Mrs Kilbride to assess for LTC. (long term care.)` That was a bit of a shock because John Kilbride had believed at the time that his mother was finishing off her respite care. Somehow respite had changed to assessment for long term care at the intervention of his sister. It goes on: `Barbara from the Respite Unit was present.` Well not in front of John Kilbride and the way the note was written it did not make that clear. What he did know was that the following day his mother was sneaked off to Morrieburn and his sister Irene telephoned him to say his mother was too tired for a visit. So she had kept him out of the way.
"Don`t beat yourself up about that," said Jane Connelly when he discussed the matter with her. "You could not know in advance what they were up to and they deliberately kept you out of the picture. It`s always easy to be wise with hindsight."
There was another interesting extract. May 13, 2011 when John Kilbride asked the social worker to keep in touch with him. `Telephone call from John Kilbride who advised that he does not work and is available 24/7 and lives within walking distance from his mother. He advised that his brother and sister tend not to include him in decisions about his mother.` The contents are accurate and show that John Kilbride did not believe his mother was going to be permanently in Morrieburn care home on 13 May 2011. (A week later the solicitor sets up the Power of Attorney.) He had never taken part in any decision to incarcerate his mother permanently in the care home. It also states that this message was reproduced exactly as recorded. Recorded? Well there had been no warning about that. However, it was Misha McTavish who had telephoned him.
There was a peculiar extract from the contact records dated 23 June 2011: ` Telephone call to Liz at Morrieburn care home. Son John has been stating his intention to come and visit his mother.` What was odd about the message was that John Kilbride had been regularly visiting his mother and this was the same day he was asked to leave the care home. No doubt it was an altered or a coded message. Somehow Misha McTavish did not want to be open about what her message had really been about.
Then there were the peculiar absences in the record. Since John Kilbride allegedly was having an effect on his mother and the social worker had advised George to instruct refusal of contact between himself and his mother he would have expected some written evidence about this in the social work file, but there was no reference at all. Deliberately breaking contact between a mother and her son is no light matter. Why was there nonsense such as `Son John has been stating his intention to come and visit his mother` in the record but no mention of this other more serious matter? But then there were other peculiarities. Misha McTavish had sent John Kilbride leaflets about sheltered housing at the beginning of his mother`s stay in Morrieburn. She had also told him she would no longer be communicating with him. These facts did not appear in the record either. In other words the social work record was not an accurate and honest account of what happened. He had some of the evidence to prove it. There was no mention of any of his letters to the social worker and he always sent them recorded delivery.
"I think I know why there is no mention of banning you from the care home in the social work files," said Jane Connelly, on a day they had been intensively researching on the Internet. "Strictly speaking in order to ban someone from seeing their mother Social Services should have gone in front of a sheriff court in order to get a Banning Order. But then they would have needed to make a case for it."
"And I had the crooked Power of Attorney in my hand. How could they risk going to court?"
"Look at paragraph 14 on the Adult Support and Protection page which discusses banning orders.. Where the adult is, or appears to be, incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney has powers to consent on their behalf. They`re talking about consent to the application for a banning order by the Council."
"The Council didn`t need to approach the Office of the Public Guardian. They all ready knew about the Power of Attorney and who the attorney was. They acted as soon as there was a capacity assessment which they themselves arranged. They could not have acted faster. That in itself screams there was something not right about it. They advised the attorney George to instruct - well it must have been the care home - to ban me. Yes you`re right. The Council did that without advising George that he should have consented to a banning order at the Sheriff Court. They`ve been dodgy from start to finish. I can`t even believe it happened the way they said it did because they`re all in cahoots."
"Obviously if this had been your mother`s private business, set up by her when she had capacity which was an essential requirement, maybe a few years back, how come the social worker knew all about it? Of course, they could always say `But we approached the Public Guardian to find out.` Only you picked up the Power of Attorney, got hold of the date it was set up and registered, and blew the whole thing out of the water. They had to act fast even though that turned the spotlight on them. Then again, if they applied for a banning order they needed to give evidence that your mother lacked capacity. They needed to provide evidence that you were a serious risk to your mother. What a mess."
"And they needed to provide evidence that banning me was the least restrictive action. They could have just said `Don`t take your mother out. Or only visit once a week. There were different restrictions they could have tried to enforce, rather than a total ban. If there had been a banning order I would have become aware of my right to appeal. To think I went to two different solicitors and not one said anything about this. Maybe I shouldn`t have mentioned the crooked Power of Attorney set up by one of their colleagues. Had I known then what I know now it`s the last thing I would have mentioned. I would have just let it come out in front of the sheriff."
.
John Kilbride who had once been a carefree wanderer spontaneously taking life in his stride now felt he had lived his life in a childlike bubble. No longer was life simply a matter of getting along. He had awakened to a darker understanding of social forces he had known nothing about. He knew he would never be the same person again. John Kilbride was not confident about it but he was pinning his last remaining hopes on pressing the Office of the Public Guardian to do an investigation. The problem with the Data Protection Act, the complaints systems and the regulator was that everything moved at a snail`s pace. Social Services could get away with rushing things illegally but it took forever for their victims to move the case through these other systems. The dice was loaded against him. His mother never stood a chance. Five weeks after he was banned from seeing her, his mother was dead.
Next Post The Funeral
Adult Support and Protection (For information)
7. Action can only be considered where an adult is an adult at risk for the purposes of the Act. In terms of the order, the adult in these circumstances becomes the "affected adult". Chapter 1)
8. Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the principles of the Act, in particular that any action will be the least restrictive action and be necessary to provide benefit to the adult. The adult's wishes and needs must always be considered. Chapter 1)
9. Where a Council is applying for an order it must consider whether the adult at risk should be referred to an independent advocacy organisation or provided with other services. Chapter 3)
10. The use of other legislation may also be considered, for example, social work, child protection, mental health, civil law or criminal justice legislation.
11. It would be good practice to ensure, wherever practicable, the adult is kept fully informed at every stage of the process e.g. whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available etc.
12. If it is considered that the adult will refuse consent to the granting of the order the council should re-consider the merit of the application. This may be in the form of a multi-disciplinary case conference. Protection orders should be only used when all other options have been explored and exhausted.
13. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been " unduly pressurised" to refuse to consent to the granting of an order.
14. Where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. However evidence of lack of capacity will be required by the Sheriff. Where the adult is, or appears to be, incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney has powers to consent on their behalf. Where no guardian or attorney has such powers, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or Mental Health (Care and Treatment) (Scotland) Act 2003.
15. Where consideration is being given to applying for an order which bans a child, this should include prior consideration of making a referral to the Children's Reporter where it is believed there would be an effective case to answer. If the circumstances are such that is a need to act urgently, then a referral to the Children's Reporter should be made at the same time as the application for an order.
Who can apply for an order?
16. Section 22 provides that an application for a banning order may be made by or on behalf of:
- an adult whose well-being or property would be safeguarded by the order; or
- any other person who is entitled to occupy the place concerned; or
- a Council.
17. Under Section 22 (2) the council is under an obligation to apply for a banning order if it is satisfied that:
nobody else is likely to apply for a banning order in respect of the circumstances which caused the council to be satisfied as to the matters set out in Section 20; and
- no other proceedings to eject or ban the person concerned from the place concerned are pending before a court.
18. The applicant may also apply for a temporary banning order at the same time as making application for a banning order, or at a later date. This allows an order to be granted pending final determination of a banning order application and may be used in cases where it is deemed inadvisable to wait until a full hearing on the banning order application takes place.
19. If the adult at risk is the applicant, it would be good practice for the council to assist with the application.
What are the criteria for granting a banning order or temporary banning order?
20. Section 20 of the Act provides that a sheriff may grant a banning order or temporary banning order only if they are satisfied that:
- an adult at risk is being, or is likely to be, seriously harmed by another person;
- the adult at risk's well-being or property would be better safeguarded by banning the other person from a place occupied by the adult than it would be by moving the adult from that place; and that either:
- the adult at risk is entitled, or permitted by a third party, or
- neither the adult at risk nor the subject is entitled, or permitted by a third party
to occupy the place from which the subject is to be banned.
21. The subject of the banning order may not necessarily be living with the adult at risk. The point of the banning order is to put some distance between them to protect the adult at risk from further serious harm.
22. The order allows a person to be banned from being in a specific place, usually where the adult at risk lives. The main test of the order is whether the person is, or is likely to be, seriously harming an adult at risk. The banning order may ban the subject from contact with the adult at risk for up to a maximum period of six months, and may include other conditions that a sheriff thinks appropriate. For example, this period could provide an opportunity for the adult at risk and the subject to undergo mediation to explore future living arrangements, or to secure the adult at risk's future on a permanent basis.
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