LPA and Trustee Issues-Pls Help!

susancs

RedDaemon wrote: »

Precise terms of the will are that the house gets sold, I get my share, my father's share is to be invested into accounts after seeking independent financial advice. The money from the interest from those investments can be used for an agreed income for my father to live off of. If in the future his needs may increase, they can agree on another amount. My father cannot make a will giving away this money because of his mental capacity and he cannot decide if he wants to take extra money out of the amount---only the trustees can do this from the interest.

That's exactly what the will interpretation states.

If your parents were married and jointly owned the house then your mother's will does not come into play as the survivor in the marriage is entitled to anything in joint names. Probate is not required just a change to sole ownership with the land registry.

Ziggazee

susancs wrote: »

If your parents were married and jointly owned the house then your mother's will does not come into play as the survivor in the marriage is entitled to anything in joint names. Probate is not required just a change to sole ownership with the land registry.

It doesn't sound like the house was in joint names...

euronorris

It all depends on what exactly was written in the Will.




He could be entitled to a 'natural' income from the funds, or the trustees could have more discretion over what income he receives. Either way, they will be bound by the terms of the Will Trust.


Do you, or another person have LPA for your father? If so, it would be a good idea to take a copy of the Will to another solicitor and have them explain exactly what the terms bind the trustees to.


Without us seeing the exact terms of the Will, it is very difficult for us to tell you what should or shouldn't be happening, and posting a copy of the Will on here would obviously not be appropriate.


However, you are right that the trustees have various powers and duties, of which the below are just a few:






s3 Subject to any restriction or exclusion imposed by the Trust instrument, a Trustee is permitted to make any kind of investment that he could make as if he were absolutely entitled to the assets of the Trust.


ss4(1) & (3) Trustees must ensure that investments are:

[*]“Suitable” in terms of their risk profile, other features and tax treatment

[*]“Diverse” in order to maintain a balance between income and growth as required by the Trust instrument and to use complimentary investments to control risk






s4(2) Trustees must keep investments under review





s5 Trustees must obtain and consider proper advice, unless, for example, they have the requisite knowledge or the costs of so doing would be disproportionate





s11 Trustees have the power to delegate some responsibilities (notably investment management)

RedDaemon

susancs wrote: »

If your parents were married and jointly owned the house then your mother's will does not come into play as the survivor in the marriage is entitled to anything in joint names. Probate is not required just a change to sole ownership with the land registry.

My mother made the will because my father has a mental illness and she did it with a solicitor who was co-executor. Probate is required and it was finally applied for 8 years after my mother's death. It was granted in August 2013. My parents were immigrants from another country so the way they did things is a bit different as to how others may do it. The house was never in my father's name as well.

RedDaemon

euronorris wrote: »

It all depends on what exactly was written in the Will.




He could be entitled to a 'natural' income from the funds, or the trustees could have more discretion over what income he receives. Either way, they will be bound by the terms of the Will Trust.


Do you, or another person have LPA for your father? If so, it would be a good idea to take a copy of the Will to another solicitor and have them explain exactly what the terms bind the trustees to.


Without us seeing the exact terms of the Will, it is very difficult for us to tell you what should or shouldn't be happening, and posting a copy of the Will on here would obviously not be appropriate.


However, you are right that the trustees have various powers and duties, of which the below are just a few:






s3 Subject to any restriction or exclusion imposed by the Trust instrument, a Trustee is permitted to make any kind of investment that he could make as if he were absolutely entitled to the assets of the Trust.


ss4(1) & (3) Trustees must ensure that investments are:

[*]“Suitable” in terms of their risk profile, other features and tax treatment

[*]“Diverse” in order to maintain a balance between income and growth as required by the Trust instrument and to use complimentary investments to control risk






s4(2) Trustees must keep investments under review





s5 Trustees must obtain and consider proper advice, unless, for example, they have the requisite knowledge or the costs of so doing would be disproportionate





s11 Trustees have the power to delegate some responsibilities (notably investment management)

What's happened is the co-trustee (the one who doesn't speak to me) had an LPA registered a year ago in March. The question is how did she do it because there is no one aside from family or the care stafff that know my father for 2 years or more indepth to certify it. His current GP has only known him for one year. He has no friends. Also, he doesn't read, write, and speaks little English. So he would have told me if someone came to certify the LPA or even that one was completed. I honestly believe they have pulled a fast one, yet the OPG cannot give me the name of the certificate provider. However, I have voiced my concerns to them about the cert provider and that my father was not made aware he could inform 5 people because the last time the LPA was brought up in 2013 we had a meeting with the social worker and it was decided that if I could not be an LPA with the co-trustee, then one would not be registered.

The terms of the will stated probate, then sell house, I get my share and the other half is to be put into investment funds after seeking independent financial advice. The trustees agree on an income for my father (keep in mind he was in a facility where he had all needs met and only required about 35.00 per month for sundries if that--yet he could require more of course). Instead of seeking financial advice the money has sat in their account for 2 years and then they just moved it into a regular checking account. My father gets dwp benefits, etc paid into his personal account that has not been made available of the amounts or balances because the trustee will not do such--even before she became LPA.

RedDaemon

Ziggazee wrote: »

Personally I think you need to take a step back, stop quoting random bits of law and let the Trustees get on with their job. Have you ever been appointed a Trustee? I suspect not, so you really don't have enough knowledge to start pointing the finger at someone else's supposed wrongdoings.


I think you're more worried that the money which will eventually come to you will be frittered away...

I am not quoting "random bits". I have spoken to 5 solicitors who have said the same.

Yes, I have been appointed as a trustee before many years ago and it was too en cumbersome, so I stepped down.

You do not know what you are talking about. My father has lost out on money for the last two years if not more because of their in competencies. Let them get on with it---they applied for probate 8 years later....that's letting them get on with it? They also have let the money sit in THEIR bank account for two years doing nothing with it...that's letting them get on with it, is it?

euronorris

When did your father lose mental capacity? And was this documented at the time (by a doctor)?


An LPA cannot be granted by someone who is mentally incapacitated. So, was this LPA granted last year, or just registered (2 different things)?


Or, is it possible that it is a Deputyship Order (very similar, but granted by the Court of Protection for individuals who have already lost capacity) that is in place?


The thing is, if your father does not require the income at this time, and the terms of the Will give the trustees some discretion over the income then it seems sensible that they would not pay him an income until such time as he requires it. IF, the income is discretionary, then your father does not have an absolute right to it, and therefore hasn't lost out on anything as he is not absolutely entitled to that income.


The capital should be invested though. However, if the trustee and attorney/deputy are one and the same, they may be trying to balance the needs of the trust (and the ultimate beneficiaries) with the needs of the income beneficiary and have therefore kept it in cash in order to keep the funds liquid and readily available.


I think you do need further information on this though, in order to understand the situation fully and complain if necessary.


My biggest concern here is that an LPA may have been granted by an individual who lacked the capacity to grant it.

RedDaemon

euronorris wrote: »

When did your father lose mental capacity? And was this documented at the time (by a doctor)?


An LPA cannot be granted by someone who is mentally incapacitated. So, was this LPA granted last year, or just registered (2 different things)?


Or, is it possible that it is a Deputyship Order (very similar, but granted by the Court of Protection for individuals who have already lost capacity) that is in place?


The thing is, if your father does not require the income at this time, and the terms of the Will give the trustees some discretion over the income then it seems sensible that they would not pay him an income until such time as he requires it. IF, the income is discretionary, then your father does not have an absolute right to it, and therefore hasn't lost out on anything as he is not absolutely entitled to that income.


The capital should be invested though. However, if the trustee and attorney/deputy are one and the same, they may be trying to balance the needs of the trust (and the ultimate beneficiaries) with the needs of the income beneficiary and have therefore kept it in cash in order to keep the funds liquid and readily available.


I think you do need further information on this though, in order to understand the situation fully and complain if necessary.


My biggest concern here is that an LPA may have been granted by an individual who lacked the capacity to grant it.

He was diagnosed around the age of 35 and is in his 70's. Yes he has been receiving benefits all of his life due to the severe mental illness and has a doctor and was in the mental health services for some time. As I said previously, he doesn't read, write, and barely speaks English, so they didn't have a translator as well. My father would have told me if someone came to visit him that was not someone he knows due to his paranoia.

It seems as though it was granted because the OPG says it has been. Again, in my other post I highlight how it could have been certified for many reasons as he has been discharged from the mental health services due to his age. Which is common because they want to downgrade his need to be seen so regularly and concentrate on others who require more services.

All solicitors i have spoken with have said the trustees at least could have invested it in a flat which would derive an income for any needs he may have. Again, his needs are few at the moment, yet that could increase as he gets older. However, they can keep an amount in cash for such and invest the money elsewhere. The issue for me is it sat in their bank account for two years ---the solicitor's account., which is highly unethical, The second issue is they never sough independent financial advice as to what to do with the money as they should have done. All of the solicitors I have spoken with are in a amazement with that.

Is there a way to msg you privately? Thank you for your help.

Ziggazee

Let's face it, the people who have real in depth knowledge of the issues are the Executor and the Trustee. The OP is making a lot of assumptions based on the fact he feels that someone is trying to pull a fast one.


He needs to get some proper legal advice rather than posting on a forum.

RedDaemon

Ziggazee wrote: »

Let's face it, the people who have real in depth knowledge of the issues are the Executor and the Trustee. The OP is making a lot of assumptions based on the fact he feels that someone is trying to pull a fast one.


He needs to get some proper legal advice rather than posting on a forum.

Here we go again.....mister #knowsitall