Guardianship and disputes: When 'sibling rivalry' prompts a court order

It's not uncommon for siblings to disagree and for disputes to arise, but when this impacts on the care of their parent it can have serious consequences. This is particularly difficult if the parent has lost capacity, and decisions need to made on long term medical and care plans and accommodation requirements, as well as day to day issues. If the siblings can't agree, who does make the decision?

This was the scenario reported recently in an interesting case decided at Paisley Sheriff Court. The adult (mother) was living with dementia and was resident in a care home. Because she had lost capacity, a welfare guardian had been appointed. 

Initially, the adult's three daughters sought to be appointed as joint guardians but following a report by a Mental Health Officer ("MHO"), it was concluded that there was such conflict and rift among the daughters that they were unable to work together. The nature of the 'mutual hostility' was long lasting such that the MHO was unable to support the application of any of the daughters individually either. This led to the local authority applying to have its chief social work officer appointed as welfare guardian instead, and this appointment was agreed by the daughters.

The nearest relative

However, in terms of the Adults With Incapacity (Scotland) Act 2000, a welfare guardian is under an obligation to consult with the 'nearest relative' when exercising their powers and duties. This then led to a dispute as to who was the nearest relative in these circumstances. The term is defined in the legislation - it is a single person and there is a strict hierarchy laid down. 

In this case, as the adult had no spouse, civil partner or cohabitant, it would usually have been the eldest child. However, the eldest daughter had health issues which would preclude her from acting, so the other two daughters sought to be named as nearest relative. Of course, they didn't agree on this, so the Sheriff was asked to decide who this ought to be.

The best interests of the adult

The evidence presented included the MHO report and affidavits with further information regarding the daughters' strained relationship, as well as the impact this was having on their mother's care. The decision turned very much on the best interests of the mother. 

It was clear that the continued dispute meant that the daughters were unable to communicate and co-operate with each other. This was affecting decisions being made in the care home, right down to disagreements about items to be kept in the mother's room and the paint colour on the walls. All of this was impacting the provision of care for their mother.

An unusual order of the court

Having regard to the best interests of the adult, the Sheriff's conclusion was that none of the sisters should be appointed as the nearest relative as "it is not appropriate that either the care home…or the social work department which carries out the duties of welfare guardian should be used as a platform for the Adult's daughters to continue to air their mutual grievances". 

The Sheriff stated that the order will "benefit the Adult as it will remove the opportunities for the three sisters to continue to use their mother's care and accommodation requirements to air their mutual hostility or to make complaints about each other, instead of prioritising her best interests. Having no-one to be consulted formally as the nearest relative should reduce the risk that one or other of the sisters will allow their disagreement to cloud any views which they express in that role".

The Sheriff noted that this is an unusual order, but that in this "unfortunate case" it was appropriate and would benefit the mother.

Disputes among siblings

Disputes among siblings can be difficult to resolve, and this case gives a clear steer that where at all possible such difficulties should be put aside and the focus should properly be on the best interests of the adult with incapacity. If the sibling rivalry is proving detrimental to the adult's care then their role in decision making can be much reduced. 

The care home will continue to update the daughters regarding their mother's wellbeing, and the daughters can continue to visit, of course, but the removal of the legal requirement for the welfare guardian to consult with any of the daughters should relieve the pressure on both the social work department and the care home. 

It is pleasing to see one of fundamental principles of the law regarding adults with incapacity being given the priority it deserves, i.e. actions taken should always be in the best interests of the adult. Even if that means her daughters' input to key decisions is restricted.

Should you require any advice on the matters discussed above, please get in touch with me or your usual Brodies contact.