Advice re mortgage and disability

Confused1972

Wonder if anyone can offer advice, husband and his brother who has MH issues inherited 50/50 shares in a house.  It is currently rented out and hubby wishes to remortgage under 1/2 the value of the property which has been approved by mortgage company.   Mortgage company want proof of capacity to confirm that brother in law had capacity to sign mortgage deed.  He is well aware and understands regarding the mortgage as it is better to keep the house and rent it out providing an income for him rather than selling it to free up some of my husbands inheritance, he willingly attended a solicitors appointment to complete an ID1 form etc.  Does this request from the mortgage company verge on discrimination in any way at all ?  Hubby does have POA for his brother for finances and does look after things like tax returns etc but discusses everything with his brother in full before taking any actions etc.

K_S

@confused1972 I'm no solicitor but afaik a PoA allows an attorney to manage and deal with your ongoing mortgage but not enter into a loan agreement in your name. Perhaps that's why they require proof of capacity?

Have they said what form this proof needs to take?

davidmcn

What discussion had there been with the lender about his mental health issues? It's not unlawful discrimination if there are legitimate concerns about whether he has capacity.

Thrugelmir

Confused1972 said:

  Does this request from the mortgage company verge on discrimination in any way at all ?  

In whose beneficial interest is the 50% remortgage being effected? The mortgage company will quite rightly have concerns. 

Confused1972

K_S said:

@confused1972 I'm no solicitor but afaik a PoA allows an attorney to manage and deal with your ongoing mortgage but not enter into a loan agreement in your name. Perhaps that's why they require proof of capacity?

Have they said what form this proof needs to take?

No and this is why we are so confused, nothing has ever been hidden from any party and the mortgage deed was signed in November but then the solicitors told us an ID 1 form was needed so that took a while to sort out with COVID and all that, when that a
was returned the solicitors then said that the mortgage company knew nothing about the POA and then this whole new debate started up.  

Confused1972

davidmcn said:

What discussion had there been with the lender about his mental health issues? It's not unlawful discrimination if there are legitimate concerns about whether he has capacity.

We have had no discussions at all directly, they have gone through the solicitors and the financial advisors.  The solicitors pulled it up during their checks apparently 

davidmcn

Confused1972 said:

davidmcn said:

What discussion had there been with the lender about his mental health issues? It's not unlawful discrimination if there are legitimate concerns about whether he has capacity.

We have had no discussions at all directly, they have gone through the solicitors and the financial advisors.  The solicitors pulled it up during their checks apparently 

Think you need to clarify this. Is it actually a concern of the solicitors rather than the lender then?

Confused1972

davidmcn said:

Confused1972 said:

davidmcn said:

What discussion had there been with the lender about his mental health issues? It's not unlawful discrimination if there are legitimate concerns about whether he has capacity.

We have had no discussions at all directly, they have gone through the solicitors and the financial advisors.  The solicitors pulled it up during their checks apparently 

Think you need to clarify this. Is it actually a concern of the solicitors rather than the lender then?

The solicitors have raised with the mortgage company so this has now caused the problem, the solicitors offered the mortgage company a Drs letter to confirm his capacity before discussing with us and now that’s what the mortgage company wants we think but it isn’t clear.  He lives independently and makes day to day decisions independently.  He understood the reason for the trip to the solicitors for the ID 1 form and signed the mortgage deed after reading it and having it explained to him, we feel he had the capacity to sign the deed in November and at the time the solicitors told us this was the only thing outstanding and once received the mortgage could be completed, once this was all sent to them they decided on their final checks to question the POA which actually doesn’t come into it.  We haven’t been asked to provide details of his disability etc, and feel that the solicitors have jumped the gun somewhat.

MWT

I suspect the solicitors are being careful because the transaction would potentially be for the benefit of the person holding an active POA, so there is no independence, and if the POA is active then it casts a reasonable doubt over capacity.

They will be wanting to avoid liability if there is later a claim that his brother didn't fully understand the implications of, for example, the mortgage not being paid and the house being repossessed...

The intended use of the funds being released by the mortgage could have some bearing as well...