A Nightmare scenario

StevieD54

born_again……yes, the bills all paid out of a sole account in her name
jude……thanks for the tips

elsien

I’m also going to chuck another caveat in here as well - whoever applies for the deputyship for the Father needs to be sure that there is no conflict of interest with the son. I think it would be very hard for the same person to effectively and fairly represent both. 

StevieD54

Yes good point elsien.
I am speaking to solicitors today to try and plan a way forward. They have already told me NOT to tell my sisters bank yet!! I confess I  misread the very start of her Will……turns out her husband is sole executor & beneficiary, but because he is in a care home lacking capability he cannot act. Apart from having to organise my sisters funeral atm, my initial problem is this……when I contact the various utility companies, whose name will used on those contracts in future?  As pointed out earlier in this thread, there’s no point putting utilities in the husband’s name, he doesn’t live in the property any more. The autistic son who we hope can stay in the house? Me? I have LPA for the son, it’s now registered, and I’ve also logged it with his bank (he uses his card daily)

Flugelhorn

I think the accounts will be in the son's name but with the LPA registered with them at the time the name is changed 

elsien

^^^ This. He will still be responsible for the bills financially, albeit with the support of the LPA.   I work with people who lack capacity in supported living, and all the bills are in their names but managed by someone else. 
I don't know if the son was was contributing to household finances in the past - if not, it's going to have an impact on him having less spending money and more going towards keeping the house going. He may need extra support around whether staying there is affordable or not in the longer term. 

StevieD54

So I now have the death certificate and with it came a booklet about the Tell Us Once service. I have had to deal with the Coroner as de facto Next of Kin because her husband (the sole executor) lacks capacity, and is in the care home. But do I (along with the other 3 ‘substitute’ executors) now have the authority to do the other things required? I’ve heard his son is now applying for LPA for his father……could that give him the power to take complete control of his father’s affairs? His father is sole beneficiary, but 95% of my sisters assets, plus the property (which she owned before she met him) are supposed to provide for her son’s future, not disappear in care home fees for the husband.

I am seeing my solicitor on Wednesday to discuss rewriting my will, but on the phone my sister’s solicitor has already told me not to tell her bank just yet. My thinking is to first contact the utility companies, phones, water energy, etc and tell their bereavement teams what’s happened, but again, is it me who should be doing this? What is my legal position?  I am her brother, not the executor of her will. I am a ‘substitute’ executor though. I think I should play dumb on the bank thing, certainly until I’ve informed the utilities. But again, is this my responsibility?

Regarding Tell Us Once, do I have to do that immediately? If I do, income sources such as my sister’s pension will stop. 

KxMx

As Dad doesn't have capacity to consent to LPA, Son's application will not be successful. 

He can look at applying through the Court of Protection instead.

https://www.gov.uk/courts-tribunals/court-of-protection

Son as Dad's Deputy must act in Dad's best interests - the will leaves Dad the assets so those assets must be used for Dad's benefit. The Court of Protection will check on the activities of the Deputy. 

Unfortunately no matter your sisters intentions, the Will has to be followed legally.

Even if he was able to get LPA, the same applies he has to act in Dad's benefit. 

Delaying Tell us Once isn't a good idea, delaying will only lead to probable overpayments which will then have to be repaid by her estate and whoever ends up acting as executor. You speak of sister's pension income but entitlement to these things usually ceases upon death. 

elsien

I would suggest clarify with the solicitor exactly why they are telling you not to tell the bank. Because that is unusual advice, unless they are waiting for confirmation that the substitute executors have to step in? 

With regards to the will, if the husband is the sole beneficiary, unfortunately it doesn’t matter what her intention was with regards to her son. The will has to be followed, although there is the route of challenging as a financial dependent.
 I don’t have any knowledge of how effective or costly that might be and it would be time-consuming because of dad’s lack of capacity.

Don’t forget though that the house will be disregarded for care home fees for while the son still lives there. 

There is also a possible argument that if dad had capacity he would choose to support his son financially. However in the circumstances that would almost certainly  need a court application to determine best interests, and would probably depend on the bigger picture. And is something for further down the
line anyway. 

And once again, I am sorry that you’re having to deal with this when you are grieving yourself. 

StevieD54

Elsien……

Concerning telling the bank……I’m not the executor, that’s my point. If anyone complains about me delaying telling anyone etc, I could argue that I had no idea who her bank account is held with. How would I?  (I do know btw). But of course my nephew’s interests are paramount here. I’ve dealt with the coroners office and they have just sent me the DC, but that’s just concerning my sister’s death.  So legally, is it me that has to trigger TellUsOnce just because the coroner sent me a pamphlet about it?  I can’t see a solicitor until Wednesday so might have to wait until then for an answer.

elsien

But you said you were a substitute executor? So I’m thinking, maybe your solicitor needs to confirm lack of capacity for the substitute to take over? Either way, I can’t see waiting  a few more days till next Wednesday is going make a huge amount of difference.