Buying a home with early stage Alzheimer's

skm1981

My dad has recently been diagnosed with early stage Alzheimer's.  He currently lives in a council flat in London and we want him to move closer to family for obvious reasons.  We've found the perfect place for him and the offer has been accepted (he will be a cash buyer).  But it seems the legal part is causing a problem as the conveyancers have said that they can act for my dad, dealing with me and my brother, but they cannot exchange contracts until the LPA is finalised, but that can take up to 20 weeks and we only applied for it last month - we all (my dad included) want to get this wrapped up as quickly as possible.  The flat he is buying is chain free as well.  My dad is for the most part fine at the moment as we are in the early stages and he is adamant (and desperate) to move.  Is there any way you can get the LPA expedited or another way around it?  

tlc678910

I wonder if your dad could have a capacity assessment - I think they are usually carried out by a trained social worker. If they can formally verify that he your dad has capacity to understand the purchase and the implications of it he may be able to go ahead with the sale in the usual way?  You could ask the conveyancers if that would be acceptable and if so see if you can get a capacity assessment. 

herebeme

Do the relevant parties understand what an LPoA is? It doesn’t give someone with LPoA authority to act independently. The attorney still has to ask the person, to the limit of their capacity, what their wishes are and act on their instructions. 

If your dad is still able to sign his name (perhaps after you read him the contract and explain anything he is confused by), and is able to answer questions (with you by his side if he needs support), an LPoA is barely needed as these are the things you’d have to do anyway even with the LPoA (though you can then sign on their behalf but still with their permission when they are able to give it, but that’s the only thing LPoA gives you at this stage). 

One other option is to get a solicitor to record your dad making a statement that he understands and consents to the purchase and you acting in his behalf, and have two witnesses sign. Given he’s early stage that may be sufficient. The LPoA is just a cheaper way of doing that. Edit: check that would be acceptable before shelling out for it!

Keep_pedalling

While your father still had the ability to make his own decision then he should be able to sign the contract himself. You don’t need to act for him at this stage,

herebeme

Point out to whoever is requiring the LPoA to be in place that your father still has capacity to make decisions on his own and sign his own contracts. To discriminate on the basis of a disability (diagnosis in this case of early Az) is illegal under the Equality Act 

Plenty of people with early dementia still work and lead fulfilling lives. The diagnosis doesn’t equal incompetence and it is discriminatory for anyone to assume so. 

You could reach out to a charity like https://www.alzheimers.org.uk and ask if they have a standard letter or something that you can send to these people to educate them about the rights of people with dementia. 

TBagpuss

Yes, if your dad had mental capacity then he can authorise the conveyancer to deal with you and there's no requirement for a POA . If he no longer has capacity then you will have to wait.

Are the conveyancers part of a larger solicitors form which deals with Private Client  matters (wills, probate etc)? if they are I would expect them to have a clear understanding.

AS above, if they are concerned then a capacity assessment (your dad's GP or specialist may be able to do one but will charge) to show that he has the capacity to buy a property should enable them to complete without waiting for the POA.

Also, unless his condition has deteriorated very seriously very recently, I'm confused as to how he had capacity to grant  POA but not now. Or are you talking about registering POA on the basis he has now lost POA. 

skm1981

TBagpuss said:

Yes, if your dad had mental capacity then he can authorise the conveyancer to deal with you and there's no requirement for a POA . If he no longer has capacity then you will have to wait.

Are the conveyancers part of a larger solicitors form which deals with Private Client  matters (wills, probate etc)? if they are I would expect them to have a clear understanding.

AS above, if they are concerned then a capacity assessment (your dad's GP or specialist may be able to do one but will charge) to show that he has the capacity to buy a property should enable them to complete without waiting for the POA.

Also, unless his condition has deteriorated very seriously very recently, I'm confused as to how he had capacity to grant  POA but not now. Or are you talking about registering POA on the basis he has now lost POA. 

We just applied for POA as soon as he got his diagnosis which he was happy for us to do.  We just did it then so that it's in place for when he does deteriorate. 

 The person I've been liaising with said that she spoke to her private client team and she said that they can act for us, but exchange couldn't take place until the LPA was finalised.  

My dad is getting a bit confused, but most of the time he's just his normal self, and he's determined to move.  He hates living where he currently lives and wants to be nearer to the rest of the family and we need him to be closer too so that we can be close by for when he does deteriorate.  

herebeme

If your Dad has the capacity to sign the LPoA application form then he has the capacity to sign the mortgage, assuming nothing has changed in the interim. Have you pointed this out to the person you are liaising with? 

Under the Mental Capacity Act 2005 people must be assumed to have capacity unless proven otherwise. Ask this liaison person to provide proof of your father’s incapacity. Remind her that a diagnosis does not equal incapacity in law. 

https://www.alzheimers.org.uk/about-us/policy-and-influencing/what-we-think/decision-making

Does your Dad have legal cover with his contents insurance? If so might be worth calling them to see if they’d support a solicitor working on your behalf to start action against the conveyancers for discrimination because frankly that sounds like what it is. 

bobster2

skm1981 said:

We just applied for POA as soon as he got his diagnosis which he was happy for us to do.  We just did it then so that it's in place for when he does deteriorate. 

There are 2 stages here. Sounds like what your father has done is complete an LPA document and you've sent it to the OPG to be registered. As herebeme has pointed out your father must have had capacity when signing the form. And registering the LPA you are not claiming that he has lost capacity. Registering it just means it's ready to use when needed.

I'm confused as to what the solicitors want to do once it's registered. Insist that the attorney signs the contract instead of the donor?

This is just not possible if the attorney's believe the donor still has capacity. The LPA form itself reminds everyone...

Your attorneys must follow the principles of the Mental Capacity Act:
1. Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
3. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
5. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

user1977

skm1981 said:

TBagpuss said:

Yes, if your dad had mental capacity then he can authorise the conveyancer to deal with you and there's no requirement for a POA . If he no longer has capacity then you will have to wait.

Are the conveyancers part of a larger solicitors form which deals with Private Client  matters (wills, probate etc)? if they are I would expect them to have a clear understanding.

AS above, if they are concerned then a capacity assessment (your dad's GP or specialist may be able to do one but will charge) to show that he has the capacity to buy a property should enable them to complete without waiting for the POA.

Also, unless his condition has deteriorated very seriously very recently, I'm confused as to how he had capacity to grant  POA but not now. Or are you talking about registering POA on the basis he has now lost POA. 

The person I've been liaising with said that she spoke to her private client team and she said that they can act for us, but exchange couldn't take place until the LPA was finalised.  

Did they explain why not? If he hasn't deteriorated since he signed the POA, then why can't they take instructions from him?

elsien

herebeme said:

If your Dad has the capacity to sign the LPoA application form then he has the capacity to sign the mortgage, assuming nothing has changed in the interim. Have you pointed this out to the person you are liaising with? 

Under the Mental Capacity Act 2005 people must be assumed to have capacity unless proven otherwise. Ask this liaison person to provide proof of your father’s incapacity. Remind her that a diagnosis does not equal incapacity in law. 

https://www.alzheimers.org.uk/about-us/policy-and-influencing/what-we-think/decision-making

Does your Dad have legal cover with his contents insurance? If so might be worth calling them to see if they’d support a solicitor working on your behalf to start action against the conveyancers for discrimination because frankly that sounds like what it is.

That doesn't necessarily follow - they are different decisions with different information that the person needs to understand. I have known a situation where the person lacks capacity around big financial decisions but was still able to complete an LPA. But it does very much sound as if they are making presumptions just on the basis of a diagnosis.
Unfortunately there isn't a way to expedite the process, it takes as long as it takes. 

I would go back to them and ask them to put their reasons in writing which then gives you the basis for a complaint. 
 Or even better, find a conveyancer with more of an understanding of the mental capacity act.
What timescale are you looking at for the sale to go through? I am wondering if they are concerned that your dad is able now to sign the contract ready to exchange but might deteriorate before the rest of the transaction needs to go through - legally committed to proceed but no longer able to instruct the bank around handing over the money, for example?