Sibling disputes and disagreements are relatively common, but when they affect how their parent is being cared for, there may be huge consequences. This is particularly challenging if the parent has lost ability and decisions need to be made on daily issues, long-term care and medical plans, and lodging needs. Who makes the decision if the siblings can't?
In a recent compelling case decided at Paisley Sheriff's Court, this scenario was detailed. The adult (mother) was a resident of a treatment facility and suffered from dementia. A legal guardian had been chosen since she had lost capability.
The adult's three daughters initially requested to be designated as joint guardians, but after a Mental Health Officer ("MHO") investigation, it was determined that there was too much hatred and disagreement among the siblings for them to cooperate. The MHO was unable to support the applications of any of the daughters individually either because of the nature of the long-lasting "mutual conflict." This prompted the local government to request that its chief social work official be appointed as welfare guardians instead, and the daughters approved this appointment.
A welfare guardian must, however, seek advice from the "closest relative" before acting in compliance with the Adults With Incapacity (Scotland) Act 2000. The question of who was the closest relative in these situations then emerged as a result of this. The phrase is established in the legislation; it refers to a single individual, and a precise order is established.
In this situation, it would normally have been the eldest child because the adult did not have a spouse, civil partner, or cohabitant. The other two daughters requested to be listed as the closest relatives because the oldest daughter's health difficulties would prevent her from performing. Obviously, they couldn't agree on who it should be, so the Sheriff was consulted.
The MHO report and affidavits with more details on the strained relationship between the daughters and how it was affecting their mother's care were included in the evidence. The mother's interests were strongly considered when making the decision.
It was obvious that the daughters' inability to cooperate and communicate with one another was due to their ongoing dispute. This was having an impact on decisions made in the care facility, even down to arguments over what should be in the mother's room and what colour to paint the walls. All of this had an effect on how their mother was cared for.
According to the Sheriff's assessment of what would be in the adult's best interests, none of the sisters should be designated as the closest relative because "it is not appropriate that either the care home...or the social work department which needs to carry out the responsibilities of welfare guardian should serve as a platform for the adult daughters to continue to air their mutual concerns."
The order, according to the Sheriff, "Benefit the Adult because it will eliminate the three sisters' ability to profit from their mother's care and housing needs to continue expressing their hatred or making complaints about one another, rather than putting mother's needs first. The chance that one or both of the sisters may allow their disagreement to affect whatever thoughts they express in that function should be reduced because there is no one to be formally consulted as the nearest relative ".
Although this is a rare order, the sheriff observed that it was reasonable and would benefit the mother in this "unfortunate situation."
Sibling conflicts can be challenging to settle, but this case makes it clear that, whenever possible, these issues should be set aside so that the needs of the adult with a disability can be adequately considered. Siblings' influence on decision-making can be significantly decreased if it is damaging to the adult's care.
The care facility will continue to keep the daughters informed about their mother's health, and the daughters can still visit, of course, but the removal of the legal requirement for the caregiver to consult with any of the daughters should ease the burden on the social work department and the care facility.
It is encouraging to see that one of the foundations of the law governing disabled persons is receiving the attention it rightfully deserves, namely that decisions should always be made with the adult's best interests in mind, even if it limits her adult children's ability to participate in important decisions