“IT feels like my father has been legally kidnapped,” said Steven Fitzpatrick, as he explained how, as a result of a power of attorney document, he and much of his family could no longer see his father, Walter Fitzpatrick. The last time he had seen his dad, he described, he and other family members were asked to leave Gartnavel Royal Hospital, where Walter, who has vascular dementia has been for the last year and a half.

During that visit, his father’s deterioration shocked Steven. He had, he claimed, been banned from access for 28 months and he saw his father had lost weight. “My dad’s dementia had worsened and he didn’t remember our names, but did recognise our faces,” he said. “My dad’s sister was in tears.”

Steven was speaking in January of this year at his home with his wife Nisha and one of their children, along with Walter’s two sisters, Kathleen and Margaret and Steven’s brother Lewis, who had come to his Edinburgh living room. to express their distress that none of them have been allowed to see Walter for so long. Even Walter’s dog, Oscar, was there, perched on the sofa.

For Steven Fitzpatrick, that last visit was one done in desperation. It was the first he and some of his family had dared in some time, and triggered by the passing of another Christmas in which he didn’t see his father. “We were told from diagnosis my dad had about five years to live,” he said. “He is now well into three years of that and we’ve not seen him for the best part of that. He missed my fiftieth birthday, his grandson’s sixteenth, Fathers Days.”

During much of that time, the reason he and his younger brother Lewis, had not been able to see him was a power of attorney document held by his older brother, welfare attorney Richard Fitzpatrick. This document, lodged with the Office of The Public Guardian, is one that for a long time they struggled to even get to see, since the Office of the Public Guardian would not release it to them as they said it was confidential. The OPG do not allow access to the actual deed, unless they are “satisfied that they have the permission to share it”, which is almost impossible to obtain when the person involved does not have capacity unless the Welfare Attorney allows access.

Only recently were they even able to properly verify that it did contain the clause excluding them - one which says that Richard can decide who Walter can or can't consort with.

Up until early 2017, Steven and Lewis were, in fact, joint financial attorneys, along with their brother Richard, and substitute welfare attorneys. Even during that period things did not run smoothly between the three brothers, but the Office of Public Guardian said it could not “mediate on a dispute between joint attorneys”.

Then, in February of 2017, Walter Fitzpatrick, who has the progressive disease vascular dementia and had been assessed in March 2016 as having lost his capacity, unbeknownst to Steven and Lewis Fitzpatrick, was reassessed by a GP as now having capacity. In Scotland, a solicitor is required to assess a person’s capacity at the time they are drawing up a power of attorney, but a GP sometimes is sometimes used to assess capacity – usually when a second opinion is needed. In the months that followed, not only was the original financial attorney document revoked, and a new one drawn up that gave Richard sole financial power of attorney, but also a new welfare document drawn up, again giving the powers to Richard. This document also contained the clause that allowed Richard to determine who visited him.

The Herald On Sunday asked Gartnavel Royal Hospital why staff were excluding the family members. NHS Greater Glasgow and Clyde gave us this statement, “The staff caring for this patient have been presented with a Power of Attorney document which allows the patient’s welfare attorney the legal right to decide on who can and cannot visit. Our staff have no option but to recognise the legal instructions of the welfare attorney.”

One of the elements that Steven Fitzpatrick questioned was how it would be possible that his father, who had been assessed as not having capacity in March 2016 and has the progressive disease vascular dementia could possibly have improved so much as to have his capacity reinstated.

It is possible, however, that either Walter’s original assessment or the later assessment was simply mistaken.

Steven expressed a belief that the ban on visits by his family was not what Walter would have wanted. He recalled that in July 2017, he and his wife Nisha, had had a very joyful visit. “He was overwhelmed to see us. He had to wipe away tears from his eyes a couple of times. Dad always enjoyed our company. I have Dad on video crying when he saw us, laughing with us. But the next time we visited we were asked to leave reluctantly by the person in charge upon presentation by Richard of a new power of attorney and since then we have not been allowed to see him although we did defy this in January 2019 when we visited and were asked to leave 5 minutes later, again as a result of Richard’s authority under the power of attorney. My dad's big sister Margaret who was so close to my dad has had no access to him. She too has dementia and this is so confusing for her. She just wants to visit her wee brother and can’t understand why she isn’t allowed.”

But should a power of attorney document, really be the basis of a lasting ban on family members? Although such a document might give decision-making power to an attorney, there is, in the law, a requirement that the granter’s wishes still be considered.

Sandra McDonald, former Public Guardian observes, “One of the principles of the PoA is that respect needs to be paid to the past and present wishes of the person. The law requires an attorney to support the person’s decision making, not to substitute their own decisions.”

Steven Fitzpatrick claimed that he knew that it would not have been his father’s decision not to see his family. “My dad is totally isolated and the authorities are letting it happen”, he said.

At times in the past few years, Steven, had not, he said, even been certain where his father was or if he was still alive. The family, he observed, had already spent whatever savings they had on legal costs. ”We are the family who have no rights. For a long time we had little information. For a long time we hadn’t even seen this power of attorney. How could we understand a document that we cannot even see? We have been treated as if none of us deserve to even know how our Dad is keeping. Surely, we have a right to see our dad?”

Steven Fitzpatrick said he had complained already many times to the Office of the Public Guardian – receiving the reply that “the Public Guardian’s office doesn’t have the power to investigate welfare matters.”

The Herald on Sunday approached the Office of the Public Guardian for comment. A spokesperson said: “The Office of the Public Guardian is satisfied that we have taken all appropriate measures in relation to our responsibilities under the legislation and will continue to do so where the affairs of any incapable adult is at risk.”

The Office of the Public Guardian has, in other words, a limited remit. Its powers only allow it to investigate financial issues – and it made 251 such investigations last year. It has, according to the office itself, “no such similar powers in respect of welfare matters, as this would fall under the remit of the Local Authority.”

Steven Fitzpatrick had repeatedly approached the appropriate local authorities during the period since 2016. Unfortunately, with no success, despite what he perceives to be the best efforts of some of the social workers involved, partly due to Walter being moved twice by Richard from one local authority area to another, which resulted in changing jurisdictions and the personnel involved. Steven also approached the Mental Welfare Commission. Walter is currently registered at a home in East Dunbartonshire, where the social work services are now dealing with Steven’s concerns and he is hopeful that finally progress is being made. Susan Manion, Chief Officer of East Dunbartonshire Health and Social Care Partnership, said, "We are unable to comment on an individual’s circumstances due to client confidentiality."

Steven’s brother, Richard Fitzpatrick, declined to comment.

Steven’s last contact with Richard was in 2016 – since then all communication has been through solicitors. “This is an utterly horrifying situation to be dealing with,” Steven said. “This isn't a breakdown in communication. This will never be fixed.”

The toll, said Steven, has been huge on his own mental health. “No thought has been given to my dad’s past and present wishes,” he said. “Nobody has looked at the bigger picture here to see what’s happening. This is a failing in the state system.”