Questions about Power of Attorney and moving into mother's house

Daniel777

Hi,

I have a couple of questions in the area of Power of Attorney and wills. I don't have all the facts at the moment as my wife has only just brought the matter to my attention.
We are in our 50's and my wife has two brothers - we'll call Pete and Jim.

Their widowed mother, mum, who lives in her own house has recently been showing signs of dementia and has granted POA to Pete who lives nearby. I don't know if this is lasting POA. My wife and Jim live a few hundred miles away.

As we understand, mum put in her will several years ago that the house would be shared between the 3 children upon her death. She does not want to go into a care home and my wife has already said that she can come and live with us.

Yesterday, we found out that if mum comes to live with us, Pete will sell his house and move into mum's house. Pete and his wife work full time and have no children. I work full time and my wife does some part time work. We have 3 children, as does Jim.

We would like to impress on mum that it would be better if she sold the house before she died and the proceeds distributed equally between the 3 children. That would obviously give us financial support when taking care of her; and we would also avoid CGT (I think).

We are afraid that if Pete moves into mum's home, we will be unable to sell the house while he is alive and thus not receive our share.
As mum's mind is now quite feeble, we don't know if Pete has been doing other things, such as persuading mum to change her will. How can we check if this has been done? Can we approach mum's solicitor and ask about the will?

Can Pete just move into mum's house without my wife's and Jim's agreement?

Thanks

Cissi

Sounds like a potentially messy situation and I think you need to see a lawyer asap, before any decisions are made. If Mum has recently changed her will it's possible that you could contest this based on her mental state, but you need expert advice.

Regarding selling the house when she moves in with you: that does sound like the least messy solution and one that I would definitely push for if I were you. You could present it to the brothers as Mum needing to pay her share for living with you, rather than as an early inheritance (for example, you may need to make some changes to your house to accomodate her needs). However, be aware that the proceeds could still be liable for inheritance tax (not CGT) unless Mum survives for at least another 7 years after selling the house.

CloudCuckooLand

Can of worms opened...money and families, eh?

Consult a solicitor. Even then they'd likely need sight of the POA and/or Will, which risks creating a family feud, just in asking for it. But at least get an idea of the options...

Don't see why you cannot speak to Mum's solicitor. But might be best to consult another for an independant view, so you have the right questions lined up for her's...

Problem with selling now; where would she live? Couldn't just give you the proceeds, that would bring "deprivation of assets" into the equation. (which may not be as risky as sometimes, if you plan to care for her at home - but life sometimes throws things up, what if you and/or wife fell ill, so you couldn't...?)

CGT would be minimal if she held onto house, and you sold after probate etc...its the gain on it that you pay tax on, so getting it and selling it within a year would not gain enough to cross the tax-free threshold.

Value of house (and rest of estate) may incur IHT. Dispersing assets early would be frowned upon...might have to pay restrospectively.

People have undoubtedly done what Pete might do, but having two thirds of ownership, if like minded, you should be able to force a sale - assuming the will does still reflect the three-way split.

Are you sure Pete won't do the right thing, giving you and Jim the equivalent value out of his house sale? Is he trying to do the right thing and keep the house "in the family" ? - people do get sentimental at such times...

Perhaps try a softly, softly approach first...the "kids" need to sit down together.

Jowo_2

Daniel777 wrote: »

Can Pete just move into mum's house without my wife's and Jim's agreement?

It's her home and she may have any guests or lodgers of her choosing. Why do you think you have any right to a say in the matter.

Here is some basic information about paying for elder care (advice relates to England but Shelter also have sites for different parts of the UK.

http://england.shelter.org.uk/get_advice/paying_for_a_home/care_and_support_costs

You should also review 'deprivation of capital' because if the elder person requires means tested social services care, either in a residential care home or at home, they will perform a financial assessment and if they believe that a person has deliberately reduced their capital to get around this, such as large gifts of cash/transfer of property, then they will treat the person as if they still have it (notional capital).

From a council website

"Some people think that if they have given away assets - savings, capital, house or other property - some time before moving into a care home it will not then affect the amount they will have to pay for care.

But there is a rule known as 'Deprivation of Capital' which says that if the significant purpose of giving away the asset was to get help, or more help, from the Council with the cost of care then we may assume you still possess the actual capital.

It will be up to you to prove that you no longer have the resource if ownership is disputed. You will need to provide written evidence, such as a trust deed, a deed of gift, receipts of expenditure or proof that debts have been repaid or we may treat you as if you still owned the asset and charge you accordingly.

You should note that a Will is not enough to allow a property to be ignored from your financial assessment. It is important that you get legal advice if you are considering transferring your property to, say, a family member or selling your home before moving into a care home."

More background here

http://www.careinfoscotland.co.uk/how-do-i-pay-for-care/paying-care-home-fees/deprivation-of-capital.aspx

Daniel777

Jowo wrote: »

It's her home and she may have any guests or lodgers of her choosing. Why do you think you have any right to a say in the matter.

A bit off the mark methinks - no one is disputing her choice of lodgers.

If Pete moves into her house, he will be a bit more than a guest or lodger.

From what my wife has said, it seems likely that he has put some pressure on mum to agree for him to move into her house when she moves down to ours.

As I said, he lives nearby. He is a strong character and she is a little scared of him sometimes. If he sells his house and moves in, I imagine it would be difficult for my wife and Jim to get him to sell after mum has died. Once he is in and changed the locks, what can we do? He would just say it's his home and has nowhere else to go.

All we want is fairness. We have offered to take mum in. The other two have not. She is scared stiff at the thought of going into a care home. As I've said, the proceeds from the sale would help us give her the support she needs.

poppysarah

Everything a POA does has to be in the interests of the person they are POA for.

RAS

Hi

You need to do the most basic thing first; check the Land Registry for details of who owns the house; in case he has got joint tenancy organised.

And mum can revoke the POA any time she likes as long as she has capacity.

If you think your brother is doing anything that is against mum's interest you can ask the CoP to check it out, assuming it is an LPA.

Grogged

Going forward, if your going to be looking after mum long term with her moving in with you, it would be sensible to look into you having the power of attorney.

poppasmurf_bewdley

This can be a real can of worms.

You might say now that you'll have your Mum move in with you, but this could cause problems later on. Will you or your wife be willing to give the care she needs if she deteriorates? Could you wipe her bum? Put her on and off the toilet? Get her dressed and undressed? Get up in the middle of the night when she wets the bed, or goes for a walk up the road in her nightie, etc, etc?

I know as I've had to face the problem myself.

If you take her in and she then has to go into a care home, the authorities will want the money from her house to pay for it, even if you've sold it. And brother living there won't make any difference.

See your solicitor immediately, tell him everything, and see what he says.

BitterAndTwisted

Daniel777 wrote: »

If he sells his house and moves in, I imagine it would be difficult for my wife and Jim to get him to sell after mum has died. Once he is in and changed the locks, what can we do? He would just say it's his home and has nowhere else to go.

I agree, it won't be quick and easy to get bro out of the house once your MIL dies. It will take time and cost them both for legal advice and representation but get him out they most certainly could. He can say anything he likes about his lack of choices but presumably he'd have had the funds from his own house's sale. If he's spent it all on hookers and cocaine it won't make any difference at all. He could rent and claim LHA if he's destitute. Which he won't be when he acquires whatever a third of the remaining estate might be. If he hasn't managed to get his hands on it already, that is.

Jowo_2

Daniel777 wrote: »

A bit off the mark methinks - no one is disputing her choice of lodgers.

If Pete moves into her house, he will be a bit more than a guest or lodger.

.

Ultimately she may have whomever she wishes in her property in whatever capacity they present themselves as - lodger, lover, companion, carer, concerned child, child concealing mercenary motives. You don't get a say who goes over the threshold. She ownes it, it's her call.