Lack of Capacity

jsh99

As an update we are awaiting a Deprivation of Liberty (DoLS) for my brother - does anyone know how long these take?

elsien

It used to be months, depending on the local authority. Now with the new Supreme Court judgement where people who would previously qualify for one no longer need it even if they lack capacity, it’s likely to be quicker. Be Aware of the possibility there may be the decision it is no longer required.

jsh99

Another update - DOLS has indeed been applied for and the case is being referred to the Court of Protection under a section 21a challenge - because he insists he wants to go home and not to sell the property. I understand a simple case takes about 6-9 months.

So until there is a decision I still cannot sell the property and I will have to apply for 'Assisted payments' from the council as he has now very little money left (not enough to cover a Octobers care home fees).

DOLS psychiatrist has also referred him to the metal health team.

I guess there is still a chance that he won't be declared to not have capacity by the Court of Protection. In which case I suppose he will go home with 4 visits a day.

elsien

If he’s assessed to have capacity, it’s his decision, although unless it’s very finely balanced, the DoLS being in place would tend to suggest not. If it’s a best interest’s decision the court will look at whether it’s in his best interest to return home, (whether it’s already been tried and failed or not been tried at all, for example, so a short-term trial might be suggested ) or if not if there’s any other option that could work better for him - a different care home for example.

Are you going to apply to be a party to the proceedings? You might find this a helpful read.

https://openjusticecourtofprotection.org/2023/03/17/deprived-of-her-liberty-my-experience-of-the-court-procedure-for-my-mum/

jsh99

https://forums.moneysavingexpert.com/discussion/comment/82124319#Comment_82124319

Social services say he lacks capacity but it is the DOLS assesor who has refered the decision to Court of Protection.

I didn't know I could apply - I will look into that.

I was told he will be appointed a solicitor - due to my LPA being a conflict of intrests.

No he has not tried going home.

elsien

Read the link. That a part which talks about being made a party to proceedings. And the blog is written by a family member so someone who is coming at it from the same starting point as you which is what makes it helpful from your perspective.

The BIA wouldn’t normally refer to court because there is a cost implication for them in doing that. The DoLS assessor is the local authority and I have never known my local authority to start court proceedings themselves in these circumstances.
What usually happens is that the standard authorisation is put in place with a recommendation that it goes to court if the person continues to object ; a relevant person’s representative (RPR) is appointed which can be a family member but in this situation is more likely to be someone independent such as an advocate and they would start the section 21a challenge after meeting with your dad to get his views and check how strongly he is objecting to his care either verbally or in other ways and they would then contact a solicitor on his behalf if necessary.

That would be legally aided for your dad because it’s not means tested. If you were a party to proceedings then your legal aid would be means tested and you may need to pay for your own solicitor or you can be a litigant in person without legal help.

When the court challenge actually starts either the local authority or your dad’s solicitor should be in touch with you to give you the information about how to be joined to proceedings. If you’re not a party to proceeding you won’t get the chance to be fully involved in the court case.
Ask them who the relevant person’s representative is.