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

G_M

Has the POA been registered? This is step two of the two step POA process.
1) Draw up a POA
2) Register it, allowing it to be used when the donor becomes incopacitated.

The real problem is that mum has appointed a single attorney - Pete. It is safe, and more usual, to appoint several joint attorneys ie all the children. This protects against exactly this kind of dilemma.

So the first thing to do is try to get the POA changed. Or cancelled and replaced by a new one.
This is easy if mum still has capacity (a medical definition, not just 'your opinion'). If she HAS capacity, and the POA is NOT registered yet, it is straight forward to cancel the POA (assuming she agrees or can be pursuaded). A new one with joint atorney can then be set up.

The Office of Public Guardian should be able to confirm registration, AND advise further.

If mum is still capable, she can over-ride Pete if she wants or can be pursuaded.
However, if mum is mentally incapacitated, then Pete has control of her affairs. He does, however, have to act 'in her best interests' but to contest this (ie claim he was acting in his OWN best interests) would involve legal intervention - costly AND destructive to the family

As for the will, he cannot change it - but if she still has capacity, SHE can change it and he may have pursuaded her to do so.

A lot depends, therefore, on whether she still has capacity. You say she " has recently been showing signs of dementia " but this is a slow, progressive process. Forgetful? Word-finding difficulties? NOT the same as 'mentally incapable', which as I said is a medical diagnosis (not an easy one - but with significant legal consequences).

Daniel777

Jowo wrote: »

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.

I fully realize she can have whoever she wants in the house.
Did I say I wanted a say who who goes over her threshold?
No, I didn't. So, your point is somewhat trite and irrelevant.

Our concern is that once he has moved in, he may consider the house to be his property and refuse to sell after mum's death.

Another poster has said that my wife and Jim, with a two thirds majority, could be legally entitled to make him sell, but there may be something in the will to prevent that happening.

Obviously, we don't want this to develop into a long family feud.

The problem is - is that mum is confused and says different things, while Pete will not open up and explain his motives.

So, we don't really know what is happening. Coming to this forum was my first port of call.

It looks like my next one will be to seek legal advice.

G_M

1) establish if she is mentally capable or not
2) contact the Office of Public Guargianship
3) contact mum's solicitor - has the will been changed? Solicitor may refuse to tell you (privacy) but if mum is NOT capable, you could raise the issue of will being invalid IF it was recently changed)ie after she became incapable. Of course if she IS capable, then a new will is her own business, though you could suggest undue pressue was brought to bear by Pete, esp if he benefits by new will

RAS

Daniel777 wrote: »

The problem is - is that mum is confused and says different things, while Pete will not open up and explain his motives.

If mum is very confused, then any POA that is not registered with the Public Guardian's Office is being used illegally.

A standard POA ceases to be valid when the donor becomes incapable.

EPAs and LPAs can only be used after the donor becomes incapable if they are registered with the PGO. I would expect that your wife and BIL would be contacted about the EPA/LPA as part of the registration process and you could object/insist for joint guardianship.

Ring the PGO and ask them if an EPA or Lpa are registered with them. read up on their web-site before you speak to the solicitor as well.

carefullycautious

Does mum still have capacity to make the decision to allow her son to move in?

Another thing is when I applied for POA for my father I had to get my brothers (via solicitors) agreement. I was not allowed to just go ahead with it.

If you have not agreed to the POA you need to get advise on what has been happening.

Your brother cant just move in and sell his house. If your brother is not careful it will end up with mum being made a ward of court and you will all have to gain permission from the courts for every penny that is required to assist mum.

Dont sit on the fence about all this

Daniel777

Many thanks for all your replies and helpful information.

The latest update from my wife is that she believes Pete is acting in good faith. If he does sell his house and move into mum's, he will give a third of the valuation figure to both my wife and Jim. They will be having a family conference in the near future to, hopefully, agree on sharing the responsibility of taking care of mum if her condition deteriorates.

At the moment, Pete is not registered as PoA and I have suggested to my wife that all 3 members of the family could be made PoA.

poppysarah

Daniel777 wrote: »

Many thanks for all your replies and helpful information.

The latest update from my wife is that she believes Pete is acting in good faith. If he does sell his house and move into mum's, he will give a third of the valuation figure to both my wife and Jim. They will be having a family conference in the near future to, hopefully, agree on sharing the responsibility of taking care of mum if her condition deteriorates.

At the moment, Pete is not registered as PoA and I have suggested to my wife that all 3 members of the family could be made PoA.

Is giving a third of the valuation to boht your wife and Jim IN YOUR MOTHERS BEST INTERESTS?

Regardless of who has POA at the moment (and that needs sorting out) you have to do what is right for your mother.

Errata

From memory - and I hope I've remembered correctly - before the POA can be registered any spouse and children are written to by the Public Guardian and they can if they wish object to it if they feel they have grounds to do so.
It's senseless to appoint only one attorney, as they can be run over by a bus tomorrow, leaving a complex situation to be dealt with - new POA application etc, which mum may not have the capacity to do and it will have to be dealt with by the Public Guardian blah blah.
Any promises made about looking after mum may be genuinely made, but nobody has a crystal ball and telling them it will be possible at some indeterminate point in the future.
Re a possible new will. I see no reason why you shouldn't write to the solicitor informing them that you have reason to believe mum has made a new will and asking what steps were taken to ensure mum had capacity (the ability to understand what she was doing and why) when she made it, and flagging up that she now no longer has capacity, in your opinion.
Re the house. If it will earn mum some income by being rented out, then clearly that's in her best interest. Selling it and splitting the money three ways, leaving her out, clearly isn't.

G_M

Errata gives good advice above, but beware of contradictiong yourself:
1) Telling solicitor mum has lost the capacity to make a new will Vs....
2) Suggesting mum draws up a new POA in 3 names. If she has lost capacity (see 1) then she is not capable of drawing up POA!

Daniel777

poppysarah wrote: »

Is giving a third of the valuation to boht your wife and Jim IN YOUR MOTHERS BEST INTERESTS?

Regardless of who has POA at the moment (and that needs sorting out) you have to do what is right for your mother.

I agree.

Personally I think she should rent the house out, or, sell it and keep the money in her own account. As others have mentioned, if my wife was given her third share and spent it, we may be liable to pay it back to the council later, if mum went into a council care home.

The idea of of Pete giving a third to my wife did have mum's agreement, (though she may have been persuaded somewhat by Pete). They just have to sit down together and agree a way forward.