Lasting Power of Attorney

Power_and_Responsibility

Good evening everyone

I have a question that I would like to ask of you all please:

My Father in Law died last year and before he died he set up with his wife the LPA for my wife and I, which we have now registered with the Office of the Public Guardian and everything is good to go. Before he died, he told my wife and I that due to other members of the family not being (how can I say this), desirable, he wanted us to use ex amount of his estate to assist us with our house purchase so we could:

1. look after his wife (move her in with us) so that the 'others' would not walk all over her.

2. To give our children a very decent start in life.

His wife is of course happy to go ahead with this, but I have doubts, especially now that we have LPA, that his wife can give us this money to go ahead and assist us with the house purchase.

Am I right?

P+R

getmore4less

what happened to his estate.

This LPA is for you to manage the wifes affairs?

Power_and_Responsibility

Hi yes, they have a MUTUAL will, so the estate has passed in its entirety to his wife. The LPA is for property and financial affairs, which my wife and I now possess to act both jointy and severally.

Power_and_Responsibility

Perhaps I should add that as a percentage in monetary terms we stand to inherit, almost 90% of the value of the estate. The other beneficeraries have amounts specified in the will.

getmore4less

AIUI as long as she is still has capacity she can still do what she likes.
but you may need to make sure you don't get accused of undue pressure if it ends up as gifts.

Once you use the LPA because she is no longer with capacity then you need to abide by the rules

Assume all the required notifications were made so people had the chance to object.

It would be a good idea to read up the legislation and your responsibilities.


Will you be the executors as well

Power_and_Responsibility

Thank you. I think I will visit the solicitor that holds the will and seek advice. She still has capacity but is not capable of administering her finances or property. She is certainly not under undue pressure and I would hope that a solicitor could draw up a statement to this effect perhaps? We are the executors as well.

May I ask what did you mean by all required notifications please?

We will be buying our first house soon (I have been moving around with my job for the 20 or so years and have only ever rented) and obviously whether we can or cannot do this has a huge bearing not only what we can buy but whether or not we can accommodate her as well.

Mojisola

Power_and_Responsibility wrote: »

My Father in Law died last year and before he died he set up with his wife the LPA for my wife and I, which we have now registered with the Office of the Public Guardian and everything is good to go.

Before he died, he told my wife and I that due to other members of the family not being (how can I say this), desirable, he wanted us to use ex amount of his estate to assist us with our house purchase so we could:

1. look after his wife (move her in with us) so that the 'others' would not walk all over her.

2. To give our children a very decent start in life.

His wife is of course happy to go ahead with this, but I have doubts, especially now that we have LPA, that his wife can give us this money to go ahead and assist us with the house purchase.

You have LPA for your Mother-in-law and she inherited everything after her husband's death - is that right?

What your FIL asked you to do - outside of instructions in his will - are irrelevant. If he had wanted you to have use of the capital, he should have left it to you. You have to manage your MIL's affairs as she would want and in her best interest.

If she is happy to live with you, you could put some of her capital towards a house but she will be a joint owner with you. Who inherits when she dies? If her estate is to be shared with other people, how will you release the money from your house for them?

You can't use any of her inheritance for your children.

Do take legal advice. If some of the family are likely to cause problems, you don't want to give them ammunition against you.

getmore4less

Power_and_Responsibility wrote: »

May I ask what did you mean by all required notifications please?

When you set up a LPA part 8 and section B requires minimum of 2 people

I guess if family are an issue those persons were carefully selected.

dzug1

Power_and_Responsibility wrote: »

May I ask what did you mean by all required notifications please?

.

When the PoA is registered with the OPG then all the people named in it as requiring to be notified when it is registered must have been notified.

In general you cannot make yourselves large gifts using a Power of Attorney - only the sort of thing that the donor would have done for birthdays and Christmas. If the OPG find out that you are doing so then they are likely to revoke the PoA. You may be able to get their permission to make such gifts but it's not an easy process.

The donor can make such gifts herself but if she has lost capacity (you seem to contradict yourself about that) then that's it.

troubleinparadise

Also read up on "Deprivation of Assets".

http://www.ageuk.org.uk/home-and-care/care-homes/deprivation-of-assets-in-the-means-test-for-care-home-provision/

I'm afraid that whatever your FIL's verbal intentions might have been, your MIL's assets, including his estate, are now hers, and you have to be seen to be acting in her best interests.

Co-investing in a house that you all share could be a minefield should she perhaps require residential care in the future.

rpc

Power_and_Responsibility wrote: »

She still has capacity but is not capable of administering her finances or property.

This sentence is confusing.

Do you mean she has the capacity to make the decisions but not to deal with the paperwork?

If she cannot understand the financial or property decisions then she does not have capacity.

If she still has capacity then SHE can instruct a solicitor (or bank, etc) about what she wishes and sell/buy herself. That way, houses could be bought and gifts could be made without using the LPA. If you do what you propose using your LPA then you will almost certainly end up in all sorts of bother, even if it was her wish when she was compus mentis.

You could buy somewhere and she pays you a lump sum of "life rent" but that needs to be reasonable. You could also buy as joint owners. However, your options are more restricted if using the LPA because you must do what is objectively in her best interests and you want to avoid anyone being able to challenge your actions.