I Want To Stay In Touch With A Relative In A Care Home But There’s A Family Dispute – What Do I Do?

Care homes across the country have closed their doors to visitors to try and keep their vulnerable residents safe from the coronavirus since lockdown measures were introduced in March.

Many of the 400,000 people in care homes depend on frequent visits from relatives and friends and the sudden loss of these visits will be taking its toll on everyone involved. This is particularly hard on people with Alzhiemer’s disease and dementia, or people who by reason of illness or injury lack capacity to make decisions for themselves (known as ‘protected parties’).

Below, we have outlined the current state of affairs when it comes to keeping in contact with a relative in a care home, focusing particularly on how this is affected by the added difficulty of an existing family dispute.

Contact with a family member in a care home when there is a family dispute

What is a “family dispute”?

Families these days are more complicated than ever before. It’s not unusual for people to marry more than once and have children from different relationships. This can, however, create tensions, which come to the fore when things go wrong for the protected party at the centre of it all, particularly if there are differences in approach among their loved ones. This is often where the Court of Protection gets involved and many cases involve passionate arguments between relatives.

A classic, but not determinative example, is where the protected party’s new partner or spouse falls out with the children and there is a ‘tug of love’ situation over who is best placed to care for that person, or whether or not someone in the family should be allowed to see them on their own or at all. Sometimes one or more of the relatives can be deemed a risk to the protected party if there is a history of abuse or irresponsible behaviour.

It can quickly get messy. When one of the people involved is faced with allegations, that individual will often fire allegations back at others. There are sometimes agendas and personal pride at stake, therefore getting to the truth of the matter is not easy and it can create delays and costs.

There are sadly a number of people who have difficulty obtaining contact with their loved one at all when there is a family dispute, particularly in cases with the elderly where a care home resident lacks the capacity to decide for themselves whom they should see. That individual may be having their decisions made by another relative (under a Power of Attorney), by a professional Deputy or by a Local Authority.

Many people left out in the cold in such a situation have to bring Court of Protection proceedings forward and can end up in long and gruelling battles with their family members. Those who are in the midst of such a struggle will now be finding it harder still with visits to care homes being banned due to COVID-19 presenting a significant safety risk. However, that does not mean you cannot still press your case in Court even during these difficult times.

What is the Court of Protection?

The Court of Protection is a specialist Court, which sits physically in the County and High Courts of England and Wales. It operates by its own rules and has jurisdiction only in cases where the person at the centre of the proceedings (the protected party) lacks the capacity to make certain decisions.

Court of Protection cases are generally divided into three categories:

1. Cases concerning the protected party’s property and finances;
2. Proceedings to do with their health and welfare; or
3. Cases that involve a degree of both.

I am in a family dispute that centres around a relative who lacks mental capacity and the people I am in dispute with say I cannot see my relative. Does this mean I can’t make contact?

It depends on the circumstances. If you are a relative and there is no concern that you present a risk to the health or welfare of the protected party, then generally there is nothing legally stopping you from making contact with the protected party.

However, Local Authorities can impose restrictions and safeguards on relatives of a protected party deemed to be at “risk”. If, however, someone within the family is obstructing that, you can apply to the Court of Protection for an order that stops them – although the route to getting such an order can involve various twists and turns and it must be shown that it is in the protected party’s best interests to have contact with you.

At the moment, however, given that many people who lack capacity are in care homes, whose residents are particularly at risk, face to face contact has not been happening. It is hard on many families and of course on the vulnerable residents themselves who depend on visits from family. Care homes are having to be very adept and organised with video conferencing software, such as Skype and Zoom, to enable some degree of contact to be maintained. This is not always easy, particularly for people with advanced Alzhiemer’s or dementia who may not understand or engage with this type of technology.

What can I do if, due to a family dispute, I have issues getting in contact with a relative who’s a care home resident?

Sometimes a solicitors’ letter to the care home, or those representing the protected party, can change things. However, if this is unsuccessful, taking action in the Court of Protection can be a viable option.

If you are in the unfortunate situation of having no means of contacting a protected party, while the Court of Protection cannot override the provisions of the Coronavirus Act 2020, it can nonetheless direct those responsible for the protected party’s welfare to undertake all reasonable steps to ensure that the protected party has contact with you. This can include actively setting up video conferencing calls, enabling WhatsApp messages or making contact via portals and other innovative technology.

It is open to all estranged relatives to argue that under the Human Rights Act 1998, denial of contact with their loved one can be a breach of their right to respect for private and family life and this is a powerful factor in favour of keeping up contact.

What are the possible outcomes of getting the Court of Protection involved?

In all Court of Protection cases, the protected party will have their own representative who will often be a panel solicitors’ firm with no prior knowledge of the family. This means that the protected party will have a voice and the warring relatives won’t be able to dominate matters as much.

The protected party may not be able to decide but the Court has to take into account their wishes if those wishes can be expressed. There are quite often visits from professional capacity assessors to try and work out what the protected party wants. It is not uncommon for allegations to be made between the parties when they do not get on and if these are serious, the Court can sometimes list the case for a fact-finding hearing, which is in effect a trial aimed at getting to the truth. Even without this, coming to decide what is best for a protected party is not an easy question to answer and it is possible for Court of Protection cases to go to three or four hearings before reaching a ‘final’ decision, depending on the complexity of the issues.

Contact with close relatives is not in itself an automatic entitlement because it falls under the umbrella of what a Court considers to be in the best interests of a protected party. It is a key health and welfare consideration, not least because it is generally considered to be good for the mental health of both protected parties and relatives to have regular face to face contact. The Court will consider the wishes and feelings of close relatives when deciding whether contact should take place, and if so, how often and what it will involve.