Selling after lost capacity

lisyloo

Hello,

My MIL aged 90 lost mental capacity (officially) this year WITHOUT a POA (she would not agree). She is now in a nursing home.
We have been manging her affairs without guardianship, for example I am her "appointee" with DWP and other departments (carers allowance unit, attendance allowance unit, local council) have accepted information from me.

Her home is jointly owned with FIL for whom we are in the process of setting up a POA. He is now quite unwell but still living in the home. We expect this to change soon as he is alone and cannot manage, so he will either go into a nursing or hospital or maybe die.

The jointly owned home will need selling at some point.
1) Will we need gurdianship through the court of protection for this?
2) If the answer if yes (as I suspect) then will she qualify for a reduction right now? Her current circumstances are that she receives a total of £159.35 (min amount to live on) via pension and pension credt and hand over £134.35 to the nursing home, so is left with £25 for personal items. The home is right now disregarded as it's FIL's home, so her half doesn't count.

The reason for asking 2) is that if he dies she inherits a flat that no-one is living in. If he goes into a nursing home she has half a house that is not longer disregarded and may not therefore be entitled to any reducation in which case it would make sense to do it now.

Please don't say "google it yourself". FIL is possibly dying and I am supporting his daughter and son. At times he is being visited every day and one day I slept on the floor overnight to stay with him (and hardly slept at all). It's not that hard to google but often money savers come up with things I wouldn't have thought of myself so it's valuable to ask.

Thanks all

macman

Is there a valid will? If FIL dies intestate, MIL will not inherit the entire estate, only the first £250K. What is the estimated value of his estate?
You cannot sell their property without their joint consent, and MIL is not able to give consent, so yes, you would need to use the Court of Protection, which as you are aware is an expensive and slow process.
I don't see the urgency in selling the flat at this time? CT will not be payable until 6m after probate is granted anyway.

lisyloo

There is a handwritten will (in a safe so we know where it is). But house is joint owners so I understand that is outside of the estate.
Flat is worth about £120K. Other savings are about £15K, so under the £250K.

I don't see the urgency in selling the flat at this time?

Right now FIL is living in the flat so I agree we would not sell the flat right now.

In summary he's at high risk of falling (declined over the last 2 weeks).
He gets 2 care visits a day, but assistance with the nightime bathroom visit could only be addressed in a care home. Currently he cannot get back into bed after his regular 3am bathroom visit as he cannot lift his legs (severe cellulitis). This is not ideal but the main concern is falling.

Currently MIL is local authority funded (as home is disregarded). If he goes into a home then BOTH will be private payers (until the money runs out). The house will then need to be sold.

If the guardianship takes weeks/months (the POA is taking months) then it will hold up the sale of the house. That's not the end of the world but it means family have to visit/maintain the house as well as visiting MIL and visiting FIL (we're a supportive family but not all of us live nearby and some can't out as they are caring for toddlers).
Another reason to get the guardianship right now is that MIL might get a reducation as her only income is £25 per week. I remember seeing somewhere (probably lemonfool) an amount of £1000.

p00hsticks

lisyloo wrote: »

But house is joint owners so I understand that is outside of the estate.

Joint ownership or tenants in common ? You need to establish this if you are not 100% sure as there are important differences.

lisyloo wrote: »

Right now FIL is living in the flat so I agree we would not sell the flat right now.

So which is his main residence - the house or the flat ? If FIL is living in the flat, not the house then I'm not sure if / for how long MILs share of the house can be disregarded in terms of the care fees.

lisyloo

Joint ownership or tenants in common ? You need to establish this if you are not 100% sure as there are important differences.

It will be whatever the default is which I believe is joint tenants (they are unsophisticated people). Why would it be different? I believe joint tenants passes outside the estate but in this case there is no material difference?

So which is his main residence - the house or the flat ? You said in your first post that no-one was living in the flat.

Apologies for confusion. There is only one property that FIL lives in. I think I said no-one would be living in it if he dies (but apologies anyway).
The flat will be disregarded as long as he lives there, but we think he needs nursing care right now and will convey this to social services.

AdrianC

lisyloo wrote: »

My MIL aged 90 lost mental capacity (officially) this year WITHOUT a POA (she would not agree).

Her home is jointly owned with FIL for whom we are in the process of setting up a POA. He is now quite unwell but still living in the home. We expect this to change soon as he is alone and cannot manage, so he will either go into a nursing or hospital or maybe die.

The jointly owned home will need selling at some point.

As she is a joint owner, you are stymied for any sale while she is extant, since you do not hold PoA for her and she does not have capacity to agree to the sale or to establishing PoA. The court of protection is your only option.

If it is owned as joint tenants, then if/when your FiL dies first, not only does any PoA for him immediately cease to exist (responsibility for his affairs passes to the executor of his will), but your MiL then becomes the 100% owner - his share simply ceases to exist, and the executor of his will is not involved. If it was tenants in common, then his share would be left to somebody in his will, which could be varied theoretically.

If/when she dies first, then FiL becomes 100% owner, and since you (will soon) hold PoA for him, you can then sell the property.

macman

Re joint tenants or tenants in common, there is no 'default', it entirely depends on what was agreed and stated in the contract, so get hold of a copy from the LR ASAP.
A handwritten will is perfectly OK as long as it has been properly drawn up and signed, witnessed by 2 non-beneficiaries: home made wills often fail for these reasons, so check.
You are making too many assumptions before checking the basic facts.

lisyloo

Thanks all.
I think the priority is getting the guardianship as that could take some time and she might qualify at the moment for a reduction if the rules for that disregard the property currently being used as a home.

I will check the will next time I'm there.
I told her/them to get a proper will but their solicitor actually told them it was unnecessary as their circumstancces were straightforward.

AdrianC

lisyloo wrote: »

I told her/them to get a proper will but their solicitor actually told them it was unnecessary as their circumstancces were straightforward.

Their wills aren't your problem here. The point at which the wills start to become relevant is the point at which the problems have resolved themselves...

lisyloo

AdrianC wrote: »

Their wills aren't your problem here.

Yes Adrian. The questions I asked were

1) Do we need guardianship to sell the house. Answer: YES
2) Is it cheaper to apply NOW whilst she's only receiving £159 per week and owns half share of a flat that is currently lived in (and therefore may be disregarded).

Question 2) is unanswered, but considering it may take months I don't see any reason to delay on guardianship if it will 100% inevitably be required and MAY be cheaper right now.

I DO appreciate the discussion around the issues.

The point at which the wills start to become relevant is the point at which the problems have resolved themselves...

I don't see that. If one of them dies then we will still be caring for the other in every sense.
BTW - We do consider ourselves very privileged to have these "problems" as most people do not have both parents aged 90, although it is getting to the stage where both of them would wish it to be "resolved".

G_M

Do you need guardianship to sell the property?
- yes if you wish to sell before she dies.
- no, not after she dies as guardianship (like POA) would cease and responsiblity would pass tto the Executer(s) of the will

You do need to establish what happens to the property (assuming it's not sold) if one or th other dies. This depends as stated if owned as 'Joint tenants' or 'Tenants in Common' (and what the will says).