Court of Protection - A Salutory Lesson in What Happens When You DON'T Assign Power of Attorney

fallen121

My Father-in-Law has severe dementia and is in a home. His wife died some years ago, there are two children, my husband and his sister.  My FIL is in receipt of a generous pension, owns his own home and has large amounts of money in savings. He is well able to self fund his care. Ever since he has been in a home his Bank accounts have been frozen at the request of the Council as he was taken into care due to nearly burning down his house and suspected financial abuse.

My husband was traced through neighbours and contacted after most of this happened. He was traced due to difficulties with contacting his sister. He has attended various conference and video calls with the Council pertaining to his Father's welfare. The Council now want to nominate my husband to apply for Court of Protection in order that they can be reimbursed for somewhere in the region of £20,000 of nursing home fees.

There are several problems with this scenario:

• My husband is estranged from his Father, who does not remember him and has not seen him for many years
• My husband lives 600 miles away from his Father and is unable to travel as he is going blind
• My husband has no money excepting a small pension but does not qualify for state benefits as I work full time
• My husband's sister has disappeared. She is in possession of the keys to my FIL's house and all the financial information pertaining to my FIL's estate  (she admitted this in a video call with the Council that we have the transcript of) but now does not respond when the Council try to contact her.
• There is no POA or any authority which would allow my husband to ascertain the value of the estate without his sister's co-operation and this is needed for COP
  
• My husband was advised to seek legal advice relating to this scenario but 6 firms (several with dedicated COP teams) have now told him (without giving details) that they are unfortunately unable to assist him. Also many firms require face to face meetings which he can't do. We can't appoint a solicitor local to us as we live under a different legal system.
• We have looked online at the costs of applying for COP independently without legal advice and they are way more than we could ever afford

The Council refuse to proceed with COP as there are living children. 

Due to Covid lockdown COP is now taking on average up to 3 YEARS in some cases. There is a very real possibility that my husband could borrow money for the fees and then my FIL could die before the process is complete, leaving my husband out of pocket as according to neighbours they think my FIL has changed his will to 100% benefit the absent sister but we have never seen this will so couldn't comment either way.

Any suggestions?

PS If this seems familiar then there was a previous thread where my husband was advised to walk away from this mess and he was very nearly successful. But since his sister disappeared the Council won't leave him alone. 

Keep_pedalling

No one can be forced to take on this role, and it does not sound like your husband has the capability to take it on.

As a last resort the LA will have to do it if no family member is willing to. I would suggest writing to the LA stating that due to his estrangement from his father and his own serious health issues he is unable to act as his father’s deputy and that he will not enter in any further corresponds on this issue. 
 

Savvy_Sue

fallen121 said:

• My husband was advised to seek legal advice relating to this scenario but 6 firms (several with dedicated COP teams) have now told him (without giving details) that they are unfortunately unable to assist him. Also many firms require face to face meetings which he can't do. We can't appoint a solicitor local to us as we live under a different legal system.

Notwithstanding living under a different legal system, you should be able to find a solicitor who has experience of t'other system. Having said that, I'm not for a moment suggesting you should do so, see below. 

fallen121 said:

Any suggestions?

PS If this seems familiar then there was a previous thread where my husband was advised to walk away from this mess and he was very nearly successful. But since his sister disappeared the Council won't leave him alone. 

My suggestion would be to pay a solicitor to write a letter explaining that your DH will NOT be accepting this responsibility, cannot legally be forced to do so, and that any further contact from the council will be regarded as harassment - or whatever wording said solicitor recommends, but that is the message. You're paying for the writing of a letter, NOT for them to take on the case! 

I would expect a solicitor from your legal system to be able to do this, and I'd also expect that either a video appointment or one at your home should be possible. If local solicitors say 'no, can't help, wrong system', then looking for a solicitor further afield who will do video appointments would be the way I'd go. 

And two can play the 'not responding' game when the council try to contact: it's not your DH's problem if his sister won't do so. 

Thinking about it some more, I might phone or email an organisation like Age UK or Mind and ask them if your DH can be FORCED to apply for Deputyship, and if the answer is as I suspect, I'd start by writing that letter myself, and only pay for a solicitor if it was ignored! It's clear from Mind that the local authority CAN apply, and if they want their money then that's what they should do. 

Good luck ... do come back if my suggestion can't be implemented for some reason, but since your DH would only be required to contribute towards the costs of your FIL's care if he'd signed a contract to do so, I can't see how he can be forced to apply for deputyship. Even thinking about the wording in your post, 

fallen121 said:

The Council now want to nominate my husband to apply for Court of Protection in order that they can be reimbursed for somewhere in the region of £20,000 of nursing home fees.

Just because they nominate him, it doesn't make your DH a suitable Deputy, and he can make it clear that he isn't, should it get that far. Actually, that would be another possible phone call or email ... details here. 

elsien

Your husband is under no obligation at all to apply to the CoP. The council may prefer it to be a family member but the family member can simply decline. 

In my area the local authority don’t make the deputyship application directly themselves; the contracted paid appointee service will contact a solicitor to make the application and act as paid deputy if needed. 

It will need the deputyship to change the locks to get into the house to look for paperwork etc. 

Sit back. Do nothing. If they want their money back, it’s up to them to put the appropriate actions in place. He has absolutely no obligation to pay any fees or costs at all, and certainly not borrowing money to do so. 
I am currently working with someone who is estranged from family and it has taken 3 years for a paid deputy to be put in place. One year of that was due to the funding authority fannying around. 

If the council continue to harass your husband then use the formal complaints procedure to make them back off. 

If FIL needs spending money in the interim then the LA or whoever they contract out to can apply to be his appointee for his state pension and have that money paid to them for his benefit. Deputyship is not needed for that. 

Spendless

The replies above have been what I suspected. I read on old thread  recently and had forgotten a reply I'd put on there, when the council were chasing my Mum for money prior to Nan's house sale going through. Mum resisted the attempts but they were always worded in a way that she 'should' be doing as they asked. That's  because it made life easier for the council rather than she was obligated to do so. 

msb1234

I actually spoke to a solicitor who deals with wills, probate etc just last week. We may need to apply to the courts of protection for my stepfather very soon. Firstly, the fees for this will come out of your FILs estate, although you may well have to pay some upfront. I have been quoted approx £1500 for the solicitor to do the work for me. As part of the process, there is a section where the courts set aside the cost of the action to be taken from the estate before the will is actioned.

An alternative is to ask the LA to put a charge against the house for payment of fees once your FIL dies. But ultimately, if your husband doesn’t want to become involved he is perfectly within his rights not to do so. 

BrassicWoman

I was alive, my sibling was alive, neither of us were prepared to do it, the council had an independent professional appointed to do it.

Tell them you will not be doing it, and let them get on with it.

Pennylane

Keep_pedalling said:

No one can be forced to take on this role, and it does not sound like your husband has the capability to take it on.

As a last resort the LA will have to do it if no family member is willing to. I would suggest writing to the LA stating that due to his estrangement from his father and his own serious health issues he is unable to act as his father’s deputy and that he will not enter in any further corresponds on this issue. 
 

I agree. I wouldn’t pay a solicitor to write a letter to them either. 

Pollycat

Keep_pedalling said:

No one can be forced to take on this role, and it does not sound like your husband has the capability to take it on.

As a last resort the LA will have to do it if no family member is willing to. I would suggest writing to the LA stating that due to his estrangement from his father and his own serious health issues he is unable to act as his father’s deputy and that he will not enter in any further corresponds on this issue. 
 

I too would agree with this.
I would also add that any further correspondence will be considered harrassment.

fallen121 said:

My Father-in-Law has severe dementia and is in a home. His wife died some years ago, there are two children, my husband and his sister.  My FIL is in receipt of a generous pension, owns his own home and has large amounts of money in savings. He is well able to self fund his care. Ever since he has been in a home his Bank accounts have been frozen at the request of the Council as he was taken into care due to nearly burning down his house and suspected financial abuse.

My husband was traced through neighbours and contacted after most of this happened. He was traced due to difficulties with contacting his sister. He has attended various conference and video calls with the Council pertaining to his Father's welfare. The Council now want to nominate my husband to apply for Court of Protection in order that they can be reimbursed for somewhere in the region of £20,000 of nursing home fees.

There are several problems with this scenario:

• My husband is estranged from his Father, who does not remember him and has not seen him for many years
• My husband lives 600 miles away from his Father and is unable to travel as he is going blind
• My husband has no money excepting a small pension but does not qualify for state benefits as I work full time
• My husband's sister has disappeared. She is in possession of the keys to my FIL's house and all the financial information pertaining to my FIL's estate  (she admitted this in a video call with the Council that we have the transcript of) but now does not respond when the Council try to contact her.
• There is no POA or any authority which would allow my husband to ascertain the value of the estate without his sister's co-operation and this is needed for COP
  
• My husband was advised to seek legal advice relating to this scenario but 6 firms (several with dedicated COP teams) have now told him (without giving details) that they are unfortunately unable to assist him. Also many firms require face to face meetings which he can't do. We can't appoint a solicitor local to us as we live under a different legal system.
• We have looked online at the costs of applying for COP independently without legal advice and they are way more than we could ever afford

The Council refuse to proceed with COP as there are living children. 

Due to Covid lockdown COP is now taking on average up to 3 YEARS in some cases. There is a very real possibility that my husband could borrow money for the fees and then my FIL could die before the process is complete, leaving my husband out of pocket as according to neighbours they think my FIL has changed his will to 100% benefit the absent sister but we have never seen this will so couldn't comment either way.

Any suggestions?

PS If this seems familiar then there was a previous thread where my husband was advised to walk away from this mess and he was very nearly successful. But since his sister disappeared the Council won't leave him alone. 

Can I politely ask that you do not delete your original post when you have resolved your issue as you did with several previous threads.

Your situation may be relevant to someone else and a compelte thread may help them.

Thank you.

fallen121

The reason I deleted the original posts in the previous threads was not because I was selfish and didn't want to help others but because the posts contained information which I was advised could have been used to identify us and used against us by my husband's SIL. Please understand we are in a very precarious position here. We're trying to do the right thing, whilst acknowledging that there is every chance we could be left seriously out of pocket.

We've now been contacted by a solicitor who says they might be willing to help with CoP if it came to it. But solicitor has cautioned that if SIL suddenly appears and opposes this nomination then she could start challenging through the Courts which would then get expensive. We don't want this. We want the Council to proceed with CoP. Council say they can't whilst there are living children. My husband is fairly reliable but left out of the Will and there's a very real danger my FIL could die before costs can be recovered (I note above that charges can be set against the estate but that pre-supposes that my SIL who inherits would settle any outstanding debts which she has a habit of not doing). My SIL gets everything once my FIL dies but until then is content to do nothing. My husband wants the best for his Father despite the estrangement. My SIL doesn't care. And the Council just want their money. And for someone else to do CoP. Not them. 

I foresee a long stalemate situation not helped by my SIL's current disappearance.

theoretica

This doesn't sound to me that it is about what is best for FIL - just what is best for the council... as it seems your FIL is being cared for appropriately.  If the council want their money then they will need to exert themselves and find a work around for not wanting to step in while there are living children.