The Wokingham Paper

Herrington Carmichael: Caring for elderly relatives at home.

Herrington Carmichael

These days, more and more people are looking after elderly relatives, many will be of sound mind and body, but some will lack mental capacity or could well lose mental capacity in the future.

Not all of our relatives live round the corner, the trends of where our families reside has changed a lot over the years.

This has seen an increase in the number of family members who own homes, both in the UK and abroad, with many choosing to live out their days outside the UK.

The choices our loved ones make can create complications, especially if they haven’t written a Will or appointed Power of Attorney. It often leads to disagreements between family members over the best course of action to take. This is particularly the case if the person being cared for is abroad and there is a dispute over whether the care being provided is appropriate. An individual cannot simply be removed from their country of residence without consideration of a number of legal factors. This was highlighted by the Court of Protection in December 2019, when it considered the case of TD (and another) v KD (and another) [2019] EWCOP 56.

TD v KD concerned a man with dementia (QD) who had been living in Spain with his second wife (KD) for over 7 years. KD had been caring for QD in Spain and applied to the Spanish authorities for his legal guardianship. While this application was being considered, QD’s children (TD) had concerns that QD was being inappropriately cared for by KD and, without consulting with KD, decided to remove QD from Spain and take him to England. TD then made an application to the Court of Protection seeking an Order that QD: reside at a care home in England, not return to Spain, and only have supervised contact with KD. KD opposed this application and challenged TD’s ability to remove QD from Spain. In considering whether to deal with TD’s application, the Court of Protection took into account that QD had, prior to losing his mental capacity, made the clear choice to make Spain his permanent home. QD was integrated into the Spanish community and received health care in Spain. QD’s removal to England was achieved “by stealth” and was “wrongful”. TD could instead have notified the police, social services or KD directly.

The Court of Protection decided that QD was not habitually resident in England and Wales and it could not deal with TD’s application on that basis. The Court of Protection went on to consider whether the matter was sufficiently “urgent” to allow the court to deal with the application, and decided that it was not. This is because a substantive order was not necessary to avert an immediate threat to life or safety and there was no immediate need for further or other protection.

The Court of Protection nevertheless demonstrated a proactive approach and decided that QD could be brought under the protection of England until the authorities in Spain have determined the appropriate next steps.

This case highlights the importance of obtaining legal advice before deciding on what to do. To remove a member of your family from their country of residence you need to ensure that the
appropriate steps are taken to secure their safety.

Our Private Client and Dispute Resolution Solicitors are experienced in both, putting the right plans in place before matters arise and dealing with any problems that arise from matters such as Court of Protection, Powers of Attorney, Wills, Estates and more. For more information, speak to a member of our team:
Private Wealth Team: info@herrington-carmichael.com
Dispute Resolution: drteam@herrington-carmichael.com
or call 01276 686222.

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