Ombudsman upholds complaint about 'last wishes' form used by care provider when service user is at end of life

The Ombudsman’s investigation concluded that the Alternative Futures Group, the provider, did not offer enough advice to staff on how to complete it, including how it recorded efforts to meet someone’s last wishes.

The man behind the complaint, Mr B, complained on behalf of his late brother, Mr C, who died in December 2023.

Mr C lived in supported living accommodation, provided by the Alternative Futures Group.

Warrington Council and the NHS Cheshire and Merseyside Integrated Care Board (the ICB) paid jointly for the provider to meet Mr C’s accommodation, health and social care needs.

In particular, Mr B complained the provider:

• completed a document called ‘my last wishes’ with Mr C, which may have led Mr C to believe he had bequeathed money to Mr B and his wife Mrs B, following his death;
• failed to support Mr C to carry out a wish to attend a football game before he died, set out in that document;
• failed to prevent a loss of Mr C’s personal possessions, believed stolen in the weeks before he died;
• failed to prevent Mr C being a victim of abuse from another resident in the supported living placement;

Mr B said as a result, he did not receive money from Mr C’s estate, which he believed Mr C intended to leave to him.

Mr C moved to supported living accommodation in 2017. This followed his discharge from hospital after a detention under Section 3 of the Mental Health Act.

The council and ICB paid for Mr C’s accommodation and support costs equally, under Section 117 of the Mental Health Act.

By July 2023, Mr C had received a diagnosis of a terminal illness. He completed the “my last wishes” document with help from the provider.

The provider declared on the form Mr C had capacity “to make and understand these plans”. It did not complete a separate mental capacity assessment with him.

According to the Ombudsman report, on page 12, headed ‘my will’, the provider did not record any answer to the question asking Mr C if he had made a will. But Mr C said he would like his money to go to Mr and Mrs B. He wanted his possessions and clothing to go to his children and grandchildren.

In the section at the end of the form headed “things I would like”, Mr C said he wanted to go and watch the football team he supported “one last time”.

In June 2024, Mr B complained about the provider’s actions following completion of the ‘my last wishes’ form, which he only saw after Mr C died. He said the provider should have encouraged Mr C to write a will.

Mr B also complained that Mr C lost personal possessions in the weeks before he died, believed stolen.

In mid-September 2024, Mr B added to his complaint. He said that one of Mr C’s children reported witnessing Mr C receiving abuse from another resident.

Considering the complaints about the ‘my last wishes’ document, the Ombudsman said: “I consider this document performs two key functions. The first is of clear practical purpose for the provider as it will help inform the care and support someone receives when at the end of life.

“Its second function is to explore the person’s wishes after they die. This information may help the Provider where it arranges a funeral for the person. In other cases, the information will be helpful to the person’s next of kin, partner or family member responsible for such arrangements.

“It is Mr B’s contention the form serves the same purpose, and so should therefore have the same status, as a legally binding will. Mr B believes that when Mr C completed the form, he may have understood it to have a binding effect on what happened to his money and possessions.”

The Ombudsman added: “I can make no finding on this question. There is a separate legal framework that decides who is responsible for managing the estate of someone who dies. A person can leave instructions on these matters in a will and name an executor whom they want to administer their estate (known as a grant of probate). If someone does not leave a will, their nearest living relative can apply for a grant of administration to manage the estate.”

The Ombudsman noted that it can however take a view on “administrative matters connected with the ‘my last wishes’ form”.

The Ombudsman said: “I note first the provider does attempt to distinguish the form from a will. First, there is the document’s title. A wish is clearly not the same as a legally binding duty. Second, on its cover, the Provider also says the document is not legally binding. Third, the document also covers the person’s wishes around care and treatment before they die. These matters would not usually form part of a will, which concerns what happens after someone dies.

“I also recognise the context in which someone completes the form. They do not do so alone but with help from a support worker or manager. That person will check the capacity of the person to understand the form. So, this is an opportunity to make clear the person understands the form has no binding effect.

“But despite these considerations, I must still find fault with the form. The sub-heading on page 12 of the form has the title “my will”, which I find inherently confusing. The questions that follow about what someone wants to happen to their money and possessions also clearly cover the same ground that a will usually covers.”

The Ombudsman continued: “I also find the form has an important omission. It does not ask the person completing the form if they want information contained in it shared with anyone before they die. I consider there is an implicit suggestion the provider will share some information contained in the form before the person dies.”

Meanwhile, the investigation found fault in how the provider completed the form in Mr C’s case, when it left the question about whether he had completed a will blank, with no note to explain why.

Turning to the football match complaint, the Ombudsman found the provider had “no evidence trail” showing whether it made enquiries for Mr C, or with his family, about going to a football match. Nor any contemporaneous record that explained why it did not pursue the clearly stated wish.

The Ombudsman noted: “When someone has expressed a clear ‘last wish’ as Mr C did, I consider it fault the provider cannot provide any record detailing any effort to help them fulfil that.”

The investigation didn’t make further enquiries on the complaint about loss of possessions or the complaint about a safeguarding incident, while finding it “unhelpful the provider did not comment on [the safeguarding incident] when replying to Mr B’s complaint”.

The report concluded that the faults by the care provider caused Mr B some “unnecessary distress” when he learnt his brother had completed such a form before he died. However, the Ombudsman did not agree the form created an entitlement for Mr B to benefit from his brother’s estate.

To remedy the injustice caused, the provider was recommended to:

• Provide an apology to Mr B, accepting the findings of this investigation.
• Make a symbolic payment to Mr B of £300 in recognition of his distress, time and trouble.
• Revise its ‘my last wishes’ form to remove the sub-heading “my will” on page 12 of the document and to include a record on whether it has consent to share any of the content of the form with next of kin, wider family etc before the person dies;
• Compile guidance for its staff on supporting users of its service to complete the ‘my last wishes’ form, to include:
  • what to do if someone does not have a will but may wish to leave one;
  • advice on how it will consider supporting someone to fulfil specific last wishes; for example where someone has expressed a wish to undertake a final visit somewhere and how it will record that;
  • advice on the extent of the provider’s ability to arrange a funeral and make spending decisions around such arrangements where it was an appointee for the deceased;
• Provide a briefing to staff responsible for helping to complete the ‘my last wishes’ form to explain any changes to the form arising from actions set out above.

According to the Ombudsman, the provider indicated a “willingness to accept” that it was at fault, and said it would offer a “limited apology” to Mr B.

However, the provider indicated that it did not consider any remedy should extend to a symbolic payment, after noting Mr B’s view that the form should be considered a legally binding will, which it strongly resisted.

The provider said to the Ombudsman: “The legal position is very clear on what constitutes a legally binding will, the process for creating one, who is the next of kin / legal executor, and what happens in the event of intestacy. Whilst AFG acknowledges the ‘my last wishes’ process and form may in part have been interpreted differently by Mr B, it is not AFG’s role or responsibility to ensure individuals are knowledgeable in such complex legal matters. This remains the responsibility of individuals themselves, their legal advisor, or their legal representative (guardian, deputy etc..) where they lack capacity.”

A spokesperson for Alternative Futures Group said: “We accept the Ombudsman’s findings and regret the distress caused. The document was intended to support person-centred end-of-life care, but we recognise that aspects of the wording and process could have been clearer.

“We have since strengthened staff guidance and improved how we record, review and respond to end-of-life wishes, family communication and safeguarding concerns.”

Lottie Winson