Is borrowing money from my dementia suffering mother legal?

AimForTheSky

MattMattMattUK said:

A solicitor could draw up a legal agreement if you had POA, but you do not, so they will not touch it with a barge pole, you also need to think about enforcement issues etc. Realistically the best solution is for your brother to un-tie his funds.

Thank you Matt. I've clearly heard what you said.

Marmaduke123

Short answer, no of course not!

elsien

Although to add to Matt comment, it sounds unlikely that she will have capacity to make it a power-of-attorney, so they will need to go for deputyship. 

If your access to her bank account is via a third-party bank mandate that ceased to be effective when she lost capacity.
If you are just using her card and her pin number or Internet banking or waving cheques at her to sign, none of that is lawful as things stand, even if you are doing it with the best of intentions.

RAS

Your current actions are well meant but illegal.

It's no longer possible for you to get Power of Attorney. You will have to apply for deputyship.

Meantime, you might be best speaking to the local Social Services, as if this comes to light any other way it could raise issues about safeguarding and that might prevent you getting deputyship.

And in this situation your brother's proposal would definitely leading to safeguarding issues. The fact that your brother thinks this is a good idea is worrying.

T.T.D

You and your sister and brother don’t realise it and probably never intended for it but what you just described in you OP is Fraud and Conspiracy to defraud under the fraud act 2006:

(1)A person is in breach of this section if he—

(a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b)dishonestly abuses that position, and

(c)intends, by means of the abuse of that position—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

What your proposing could lead to severe loss especially if your brothers funds are tied up for a duration beyond his control or could never come to fruition after all, by this mere exposure your guilty of this crime. 

Also look into section 2 false representation and section 6 for using the card without authorisation possession or control of any article used in fraud.

If two or more people are using the account and each other are working in tandem in regards to that account you and your sister and your brother can also charged with conspiracy to defraud. Whilst this you may believe  is a stretch and you believe your handling your mums affairs, but in essence you and your sister are debating and conspiring to approving any loan (removing funds) from your mums account (without her permission) of your mum who has no mental faculty to approve such loan and you your sister and brother so he can gain from it (even if temporarily) have no such legal authority to take such decisions to remove or loan monies from her account, you could be guilty of this offence under this act. 

I would seriously consider looking into becoming a deputy for her affairs. Unauthorised use of her account could is also a breach of contract with her bank, they could withdraw her account from use and place it on hold and you would never get it reinstated because she would be unable to pass the secure security questions they have place for her when she set it up. 

 

Keep_pedalling

AimForTheSky said:

Thank you all.

Yes, if Mum had capacity she would have made a loan the same as she made a similar sized loan to my sister when she needed one.

No, we don't have lasting power of attorney. When Mum had capacity we didn't know about these things.

There's no particular point in applying to the court of protection because we can already spend her money as needed for her care. In any case, such an application would likely take years. And even if we did, surely it wouldn't solve the problem because there would be the same issue of whether taking a loan was legal.

It sounds like a legal agreement would need to be drawn up. If indeed that is possible.

Any further advice would be appreciated.

Many thanks.

Obtaining deputyship is long winded but it will take months not years and you need to start the process ASAP. If her bank find out what is going on you are going to you are suddenly going to find life very difficult. At some point it may become necessary for her to move to residential care where deputyship is going to be vital. If you don’t have it the LA may step in to obtain it. 

AimForTheSky

Keep_pedalling said:

Obtaining deputyship is long winded but it will take months not years and you need to start the process ASAP. If her bank find out what is going on you are going to you are suddenly going to find life very difficult. At some point it may become necessary for her to move to residential care where deputyship is going to be vital. If you don’t have it the LA may step in to obtain it. 

Thank you. We had better get and apply for deputyship asap. I am now quite a bit more educated than I was.

Mum's dementia was like many; first slowly and then all of a sudden. ThePOA is something we never thought about. FWIW. I'm in the process of getting a POA for myself.

Teapot55

@AimForTheSky Sorry to hear your mother is unwell with dementia. These things do creep up on us as families. 

I think you have been very gracious in your replies and I’m glad this Forum has been able to help you. 

Different circumstances in my family a couple of years ago but I found that getting the DWP (Department of Work & Pensions) to pay my relative’s State Pension into a new bank account that I set up with one of the banks I already bank with was relatively simple. Not quick, but after a few months it was done and I was able to start paying the local council her contribution for her care from that account. 

Pollycat

I don't know if this has been mentioned up-thread but these links may be useful:

Court of Protection - GOV.UK (www.gov.uk)
Court of Protection - Mind

elsien

That’s a good point about the appointees ship for benefits. It’s a lot quicker, if it’s not already in place, and will allow you to have her state pension and any other benefits such as attendance allowance to be paid into an account in the appointee’s name. So if her account do get frozen for any reason while you are waiting for a deputyship, you still have access to some money for her.