Guardianship and litigation: when “sibling rivalry” calls for a court decision

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It’s not uncommon for siblings to disagree and disputes to arise, but when it impacts their parent’s care, it can have serious consequences. This is particularly difficult if the parent has lost their abilities, and decisions have to be made about medical and long-term care plans and accommodation needs, as well as day-to-day issues. If siblings can’t agree, who makes the decision?

This is the scenario reported recently in an interesting case tried at Paisley Sheriff Court. The adult (mother) had dementia and resided in a care home. Because she had lost her capacity, a social guardian had been appointed.

Initially, the adult’s three daughters sought to be appointed as joint guardians, but following a report from a Mental Health Officer (“MHO”), it was concluded that there was such a conflict and such division between the girls that they were unable to work together. The nature of “mutual hostility” lasted a long time, so the mutual was also unable to support the application of any of the girls individually. This led to the local authority requesting instead that their head of social work be appointed as a social guardian, and this appointment was accepted by the girls.

Next of kin

However, under the Disabled Adults (Scotland) Act 2000, a social guardian is required to consult the ‘nearest relative’ when exercising his or her powers and duties. This then led to a dispute over who was next of kin under these circumstances. The term is defined in the legislation – it is one person and a strict hierarchy is established.

In this case, since the adult did not have a spouse, civil partner or common law partner, it would generally be the eldest. However, the eldest daughter had health issues that would prevent her from acting, so the other two daughters sought to be named next of kin. Of course, they disagreed on that, so we asked the sheriff to decide who it should be.

Adult’s Best Interests

Evidence presented included the mutual fund report and affidavits containing additional information regarding the girls’ strained relationship, as well as the impact it had on their mother’s care. The decision rested very much on the best interests of the mother.

It was clear that the continued conflict meant that the girls were unable to communicate and cooperate with each other. This affected decisions made in the nursing home, right down to disagreements over what items to keep in the mother’s room and what color to paint the walls. All of this had an impact on the caregiving for their mother.

An unusual court order

Having regard to the best interests of the adult, the sheriff’s conclusion was that neither of the sisters should be named next of kin because “it is not appropriate for the nursing home…or the social work department who performs the duties of guardian welfare must be used as a platform for the daughters of the Adult to continue to air their grievances against each other”.

The sheriff said the order “will benefit the adult because it will remove opportunities for the three sisters to continue to use their mother’s demands for care and accommodation to express mutual hostility or to complain about one another. on the other, instead of putting her best interests first. Not having anyone to formally consult as next of kin should reduce the risk of either sister leaving her disagreement cloud the opinions she expresses in this role”.

The sheriff noted that it was an unusual order, but in this “unfortunate case” it was appropriate and would benefit the mother.

Conflicts between siblings

Conflicts between siblings can be difficult to resolve, and this case clearly indicates that, where possible, these difficulties should be set aside and the focus should be on the best interests of the disabled adult. If sibling rivalry proves detrimental to the adult’s care, their role in decision-making may be significantly reduced.

The nursing home will continue to keep the girls informed of their mother’s well-being, and the girls can continue to visit them, of course, but the removal of the legal requirement for the guardian to consult with one of the girls should relieve pressure on both the social service and the nursing home.

It is gratifying to see one of the fundamental principles of the law concerning incapable adults given the priority it deserves, that is to say that the actions taken must always be in the best interest of the adult. Even if that means her daughters’ input into key decisions is limited.

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