Lasting Power of Attorney

Power_and_Responsibility

stevepett wrote: »

I think you absolutely MUST send your MIL to a solicitor you have no connection whatever with.
You mustn't arrange it, take her there, or have any involvement in it. Get one of her friends to help if need be.
Let her explain to the solicitor what is wanted and get the solicitor to write to you outlining her wishes.

This is on the basis that she DOES have mental capacity, she just isn't used to making decisions.

You are in very difficult territory and could easily find yourselves accused of undue influence by the undersirables, who see a way to a bigger share, and perhaps even have the LPA and later the Will struck out by the Court of Protection.

Thanks again. The FIL literally changed his will on his deathbed, he was 1.5 days away from death when he changed the will but obviously he had capacity and he told me what had been changed. The solicitor who attended him was aware of what he wished for the money and she asked for bank details of the accounts but that changed to what it is now. Both FIL and MIL signed a letter attached to the will stating why they had chosen to favour my wife so heavily too. I think taking MIL to a neutral solicitor is a good idea and we may try it, but I don't think she would be convincing enough as whilst she has capacity she would not be capable of getting across what she wants to do (perhaps I am doing her a dis-service). I think from the options above, her paying rent to us every month is an option and we leave the cash invested and leave her property on the rental market so anyone could see that her estate remains intact and even with a rent to us she has a reasonable income.

Mojisola

Power_and_Responsibility wrote: »

I think taking MIL to a neutral solicitor is a good idea and we may try it, but I don't think she would be convincing enough as whilst she has capacity she would not be capable of getting across what she wants to do (perhaps I am doing her a dis-service).

I remember helping my parents through this stage - we would talk through issues, I would put down on paper lists of pros and cons, they would decide what they wanted to do and again I'd write it out so that they had time to mull over it before seeing anyone legal.

This was before I had POA and, as the family all get on, my siblings were kept in the loop as well.

You're in a very difficult position because of the relatives but, in this case, the mutual will is helpful because your MIL can't change it, no matter who puts pressure on her.

It's probably more important for you to take legal advice about what's okay for you to do as POAs. If you can show that you've taken advice before any major decision about property and so on, it's going to be much harder for others to challenge anything.

getmore4less

Power_and_Responsibility wrote: »

Thanks very much. Nope definitely a mutual will. .

AIUI that creates a trust on the first death and can put significant restrictions on the assets within that trust.

Power_and_Responsibility

getmore4less wrote: »

AIUI that creates a trust on the first death and can put significant restrictions on the assets within that trust.

Thanks, what is AIUI?

madbadrob

Power_and_Responsibility wrote: »

Thanks, what is AIUI?

As I understand it! I believe

Rob

Power_and_Responsibility

Thank you Rob.

Power_and_Responsibility

stevepett wrote: »

I think you absolutely MUST send your MIL to a solicitor you have no connection whatever with.
You mustn't arrange it, take her there, or have any involvement in it. Get one of her friends to help if need be.
Let her explain to the solicitor what is wanted and get the solicitor to write to you outlining her wishes.

This is on the basis that she DOES have mental capacity, she just isn't used to making decisions.

You are in very difficult territory and could easily find yourselves accused of undue influence by the undersirables, who see a way to a bigger share, and perhaps even have the LPA and later the Will struck out by the Court of Protection.

Hi Steve, I have been thinking about the neutral solicitor comment. I am however, thinking about talking with the solicitor that is 'familiar' with what happened so at least she will have some background. I know she will not be able to discuss the will or indeed anything that was discussed and as we have no ill-intentions I think we will have nothing to lose so to speak.

madbadrob

Power_and_Responsibility wrote: »

Hi Steve, I have been thinking about the neutral solicitor comment. I am however, thinking about talking with the solicitor that is 'familiar' with what happened so at least she will have some background. I know she will not be able to discuss the will or indeed anything that was discussed and as we have no ill-intentions I think we will have nothing to lose so to speak.

I am pretty sure she couldn't work for you as there would be a definite conflict of interest but a call to find out doesn't hurt

Rob

Power_and_Responsibility

getmore4less wrote: »

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

Hi just an update. We received the LPA from the OPG all approved etc etc. Anyway I phoned the OPG yesterday and explained; could we either accept the money or if not perhaps consider charging the M-I-L rent when she comes to live with us. They said has the M-I-L got capacity I said yes they said that she can do what she wants with the money. I said but we have POA they said have you used it to set up bank accounts or for anything else to which I said no, then they said, yup she can do what she wants and asked me to check this out with the Court of Protection. So I phoned the COP and again they were asking me if she had capacity and if we had used the LPA for anything to which I replied again no. SO they said she can do what she wants. So I phoned the OPG again and again they said she can do what she wants as she has capacity. So it seems clear.....she can allow us to use that money even though we have registed the LPA we haven't used it. So it would seem we can. So we can go forward now an plan accordingly. But I think I will when the time comes to shift money around, check with the OPG to see if everything checks out.

Also it would seem that there is a fundamental difference between having an LPA authorised by the OPG and actually 'using' the LPA which is when all the LPA rules come into play.

dzug1

Whilst the donor of an LPA has capacity they have the right to use their funds as they think fit. Even if the LPA has been registered and the Attorney has started using it they retain that right. It's not an either or situation.

The holder of a power of attorney has very limited powers - particularly when it relates to gifts and to wills (where they essentially can do nothing without OPG approval)

So in your case you can accept the gift from MiL if she makes it - you cannot make it on her behalf. Even if she instructs you to she should sign the cheques.