Change of Will - Deed of Variation

Craighoy

Hi
Looking for some advice.  Sadly my mother passed away after struggling with dementia for 10 years or so. In the will everything is left to my father.  However my father is also in a care home is 90 years of age and with severe dementia. He has a pension that covers the care home fees and provides a little bit more and he also has quite significant cash reserves in his own name - so he has no need for any inheritance, nor any way of using it.
Their wills read - on the event of the first death everything passes to the other then on the second death the funds pass to the children in an equal split.
My sisters have Power of Attorney for finance and health and we are asking the question - Is it possible to change the will via Deed of Variation so that instead of the funds going to my father they by pass by him and on to us siblings now?
All those named/benefiting in and from the will are in agreement for this to happen.
The question is - is it possible?
Inheritance tax is not a factor in this as the estate is below the limits.
All advice welcome!  Thanks in advance.

RAS

Attorneys have a duty to operate only in the best interests of your dad.

You can't argue it is in his best interests to do a deed of variation, unfortunately.

However, can we be clear about the value of your dad's estate? It could be that up to £1m is available before there is an IHT liability.

poppystar

Since everything is left to your father and it sounds like he doesn’t have capacity then all the beneficiaries are not in agreement as there is only him. So no it isn’t possible

in_my_wellies

This is similar to the situation with my mother although she lived with me and paid for carers to visit each day (not a lot cheaper then a care home but it suited us)  I had POA for Health and Wealth. She had enough income from pensions to cover the cost of carers so the savings and investments were not touched. When she died my brother and I did a Deed of Variation so a proportion of her money went straight to the grandchildren. 
As above, we were told the money could not be used whilst she was alive. They just had to wait a little longer but as they weren't expecting it it was no hardship. 

Craighoy

poppystar said:

Since everything is left to your father and it sounds like he doesn’t have capacity then all the beneficiaries are not in agreement as there is only him. So no it isn’t possible

This is true - in the first instance. Then it’s on to us siblings on his death. So the fact that Power of attorney is in place is irrelevant and my sisters cannot make the decision?
(ps- grateful for the response because I am so out of my depth!

noitsnotme

Craighoy said:

poppystar said:

Since everything is left to your father and it sounds like he doesn’t have capacity then all the beneficiaries are not in agreement as there is only him. So no it isn’t possible

This is true - in the first instance. Then it’s on to us siblings on his death. So the fact that Power of attorney is in place is irrelevant and my sisters cannot make the decision?
(ps- grateful for the response because I am so out of my depth!

Using the POA to pass your father’s inheritance on to the children is not in his best interests. It does not benefit him in any way.

With the greatest of respect the children will need to wait for the father to pass and then inherit according to his will.

in_my_wellies

The above is what I was told. Even though I knew mum would have been happy to give the money to her grandchildren if she had had capacity I couldn't as POA

bobster2

Redirecting an inheritance via a deed of variation is similar to giving a gift - and ability to make gifts using a POA is extremely limited. Anything more than small gifts in some specified circumstances would require permission from the Court of Protection.

RAS

bobster2 said:

Redirecting an inheritance via a deed of variation is similar to giving a gift - and ability to make gifts using a POA is extremely limited. Anything more than small gifts in some specified circumstances would require permission from the Court of Protection.

We were in exactly this situation. The donor had been buying grandchildren Christmas and birthday presents, so buying them presents of roughly the same value was acceptable. Someone objected to the registration, so it was made explicit to us and them that buying substantially higher value presents wasn't permitted. 

Not that we planned this. We also bought and sent out cards to those on the Christmas card list with an annual update.