I'm in a dilemma - do we need Deputyship?

Dave2018

My Mom is in a care home with dementia. She also has symptoms of Parkinsons, her mobility is poor, there's something wrong with her heart, though a doctor said on one of Mom's many A & E visits that a DNR could be put in place as my mother's ninety, but it was very unlikely it would be needed.

Mom is in an Emergency Assessment bed waiting for a permanent placement. She owns the house she used to live in, but I bought it with her, putting up half the money. I had to then sign my half over to Mom in order to get a mortgage for my own flat, but if the house is sold, I get half the money. My sister, who is sixty-eight, used to be my Mom's carer and suffers anxiety for which she is on medication, still lives at the house, as she has done for over fifty years.  Plus, there is a deed of trust that states the house can only be sold if both my Mom and sister agree to this, and that my sister has lifetime right of occupancy.

My Mom made no will, but I'm told that the house would come to me, my sister and my brother (who has his own place) in the event of my mother's death. I don't want the house, and a legal advisor has told me that if I sign the house over to my sister, it won't be seen as tax evasion as my own estate is small. My brother doesn't want it either, but the consequences for that for him are on his own head. The legal advisor said he needs to get his own advice.

My Mom didn't want to sign for Power of Attorney either. She's stubborn like that. I'm now in a quandary over whether we need deputyship. Deputyship involves making decisions regarding wellbeing, for example (a silly example, I know), if a doctor says they're going to inject my mother in the hand, we can say no, inject her shoulder, even though the doctor knows best (at least according to a social worker I spoke to at the care home). However, what about financial decisions? I'm pretty sure the council won't take the house, or at least it's unlikely due to the above (correct me if I'm wrong), but my questions are as follows:

1. What's the worst that can happen if we don't get deputyship?

2. How likely is it that the worst that can happen, will happen?

3. My thoughts are that we're unlikely to want to change a doctor's decision, but am I being totally naive?

We are in England.

Flugelhorn

Dave2018 said:

3. My thoughts are that we're unlikely to want to change a doctor's decision, but am I being totally naive?

there are always discussions when there are options - ultimately whatever is done should be done in the best interests of the patient. and you can't get to them to do something that is clinically inappropriate or undoable

you wouldn't change a decision just have an opinion when there are options eg after the Nth admission for a chest infection and iv antibiotics with increased confusion, the option may be to "stay put and try oral treatment and supportive care" - you may agree that this is the best, knowing that it may not work but that may lead to less distress and the person is cared for by people they know in a place they know 

tetrarch

The application for Deputyship is time-consuming and there is a fair amount of paperwork. I would expect this due to the safeguards required, but it is something to consider

My experience my late MIL and no LPA is that the medical establishment are obsessed with "disgnosing and fixing problems". They seemed to not understand that falls in a dementia patient are not abnormal. The obvious distress that my MIL was subjected to with a battery of disgnostic tests and assessments was excessive.

In theory, a Deputyship would give you more rights and control, that said my Wife fought her corner as Next-of-Kin and got my MIL treated with respect and dignity - but it was a fight.

Best wishes

Tet

RAS

You've got an unusually complex set up regarding the house based on piecemeal decisions made over the years and should take proper advice as to the actual implications of mum dying intestate, in terms of taxes like SDLT. 

Deputyship takes time to acquire, probably 16 months plus but if you don't commence the process Social Services may feel compelled to do so. Their costs are likely to be higher than DIY.

Meantime,

Your sister is over 60 and resident so mum's house should be excluded from any financial assessment.

Since ownership of any portion of it will not affect SDLT when you replace your primary residence, that's one factor you can ignore. 

If you want to avoid CGT, protect your sister's right of residence and ensure your portion becomes part of your estate when she dies, when mum dies get advice on a deed of variation (DOV) allowing your sister to live there until she dies? This needs registering with HMRC. 

You and your sister need to talk about her wishes and expectations. On a practical basis can she afford to live in the family home on her future income? If not where? The DOV can be written in such a way that she could benefit from income from money released if she chose to move. 

But also help her get a benefits assessment because getting a £5 a week income might prevent her accessing things like pension credit which is a gateway benefit.

I'd suggest AgeUK would be a good starting point with you and your sister, and possibly brother. Your sister is probably already anxious about the situation and the future but little and often, backing off when she's distressed, might enable her to deal with it over time. And help her decide what she needs going forward.

Bear in mind that any deed of variation needs to be done within 2 years of mum's death, so early discussions could be useful.

Keep_pedalling

Even if you had POA or deputyship gifting tour mother’s property is beyond the authority of a deputy. Unless your mother only has a short time to live it may still be worth obtaining it to deal with the more day to day finances.

The simplest solution, if you and your brother want your sister to have the house, is to make a deed of variation on your mother’s death so that she inherits the whole thing. A DoV avoids any IHT implications for you or your brother. 

elsien

You are very unlikely to get a deputyship for health and welfare. These are rarely granted as the court tends to the view that the best interest process is perfectly adequate in most cases when people lose capacity. 

So the starting point is, she makes her own decisions around her health. If she can’t do that then the relevant health professional would be the decision maker in consultation with the people who know her best, including family. 

So you would be consulted and any disagreement should  be properly discussed along with the reasons why. 

You are not in a legal position to give consent or make the decision for her.

And for information, next of kin has no legal meaning and does not confer any particular powers on any family member. 

With regards to finances the house would not be need to be sold to pay for care fees while someone over 60 years is living there. 

Heliocentric

Dave2018 said:

My Mom is in a care home with dementia. She also has symptoms of Parkinsons, her mobility is poor, there's something wrong with her heart, though a doctor said on one of Mom's many A & E visits that a DNR could be put in place as my mother's ninety, but it was very unlikely it would be needed.

Mom is in an Emergency Assessment bed waiting for a permanent placement. She owns the house she used to live in, but I bought it with her, putting up half the money. I had to then sign my half over to Mom in order to get a mortgage for my own flat, but if the house is sold, I get half the money. My sister, who is sixty-eight, used to be my Mom's carer and suffers anxiety for which she is on medication, still lives at the house, as she has done for over fifty years.  Plus, there is a deed of trust that states the house can only be sold if both my Mom and sister agree to this, and that my sister has lifetime right of occupancy.

My Mom made no will, but I'm told that the house would come to me, my sister and my brother (who has his own place) in the event of my mother's death. I don't want the house, and a legal advisor has told me that if I sign the house over to my sister, it won't be seen as tax evasion as my own estate is small. My brother doesn't want it either, but the consequences for that for him are on his own head. The legal advisor said he needs to get his own advice.

My Mom didn't want to sign for Power of Attorney either. She's stubborn like that. I'm now in a quandary over whether we need deputyship. Deputyship involves making decisions regarding wellbeing, for example (a silly example, I know), if a doctor says they're going to inject my mother in the hand, we can say no, inject her shoulder, even though the doctor knows best (at least according to a social worker I spoke to at the care home). However, what about financial decisions? I'm pretty sure the council won't take the house, or at least it's unlikely due to the above (correct me if I'm wrong), but my questions are as follows:

1. What's the worst that can happen if we don't get deputyship?

2. How likely is it that the worst that can happen, will happen?

3. My thoughts are that we're unlikely to want to change a doctor's decision, but am I being totally naive?

We are in England.

Hello. I have a Deputyship for my dad because like your mother, he had no interest in getting a POA because he thought he was immortal and he would live forever. He is also in a carehome but with Alzheimer's.

Did your mum only just go into care? 

The council won't take the house if your sister is living there and has always lived there and has the lifetime right of occupancy (if this is legally bound). The part about your sister and mother agreeing to the sale doesn't count, though as your mother now has no capacity (whoever is her Deputy would have to make that decision on her behalf) and your sister would essentially not have a choice if the council want to free up money but as she lives there, it looks like this won't happen. That should all be fine. It's usually a problem if nobody lives in the house. Sometimes the local authority will ask for evidence that she has lived there. I lived with my parents for 40 years, I'm in the census going back decades, they constantly send me election cards and yet they still gave me grief 'there's no evidence'. What an effing joke. I don't know which borough you live in but in my local one, the departments don't talk to each other so I told them to. Nightmare.

I have finance and affairs deputyship for my father, not health, as I was told there was no need. He is in a care home and I trust them to make the right decisions. Having said that, they do ask me if I consent to him having a covid vaccine or flu vaccine. I think if I had the time I would possibly get the health one so I could ensure certain things were better taken care of (teeth) but I am not a medical professional and I think they are best placed to make those decisions themselves,

The local authority pay most of my dad's care home fees. Financial deputyship involves paying my dad's contribution (with his money, you are not meant to use your own money). It also means I am in charge of his account and I use it to buy clothes, toiletries etc.

For the first year, you need to keep receipts for everything you use your mother's money for and you need to write an itemised list (in excel for example). You are basically being monitored to make sure you use the money on your mother and not for anything else. You'll need to show her bank statements etc. After the first time, if they're happy with you, they won't ask for such detail again. You will still have to fill out a short form every year but it's not a problem. You also need to take out a bond based on your mum's savings each year, I think but that should only cost about £7.99 (depending on her savings) and you have to use your mum's money for that.

Someone mentioned paperwork, it can be a bit of a pain but that's just to get the deputyship. You need to send copies to interested parties (relatives, friends) to make sure nobody objects. This was hard for us as nobody knew my dad so I just sent it to the care home and someone at the local council. It took over a year for us to get deputyship.


To answer your questions:

1. What's the worst that can happen if we don't get deputyship?

- The absolute worst is that someone else applies for deputyship - a neighbour, a friend, a long lost relative and they control your mum's money. ANYONE can apply for it but you do have the chance to object when they tell you about their application (that's if they actually tell you - all they have to do is name a person and possibly give an address - they could pretend any of of their friends is a relative or a close friend of your mum's and tell the friend to ignore the letter).

- The second worst thing is that you don't have access to your mum's money or bank accounts (unless you have a joint account). I have no idea how you will help contribute to her care home fees without access to her money. I don't know if they just take it straight from the bank? If you're happy with them taking the money directly from the bank without you looking at it to make sure what they're asking for is right etc. then go ahead.

- Otherwise everything you buy for your mum, including if she needs to visit the hospital (cabs), clothes etc. will need to come out of your own pocket if you don't have access to your mum's money. Personally, I'm not rich, so I don't want to use my money unless I have to.

2. How likely is it that the worst that can happen, will happen?

- Depends on the people in your family and your mum's friends etc. if they would ever want access to your mum's money. I have no idea why you wouldn't want access to her money so she can pay for her own things, however.

3. My thoughts are that we're unlikely to want to change a doctor's decision, but am I being totally naive?

- I didn't get the health one and I am in agreement with you here, however some people make take issue with DNR (do not resuscitate) and for religious reasons they may not agree to certain medications or procedures. Your call on that one. If you want a specialist to see your relative, the care home may not be willing (beyond basic needs), so there is that. An optician suggested putting my father forward for an operation for his eyes and I haven't heard anything since so I am guessing the care home declined. I don't know.

I really can't think of the worst thing that could happen without the health one. IMO having alzheimer's is one of the worst things possible and that has already happened.

elsien

There is a little bit of confusion going on in your post. Just to clarify and as per my earlier post, people might be asking me  for your consent for health decisions, but you can’t legally give it, and they shouldn’t be asking. You are being consulted on what your relatives wishes may have been and the health professional is making the decision.

And it is absolutely not the care home’s decision whether to put send someone forward or not for a procedure or to see a specialist. If anything  is needed it would go via the GP to be referred and if the person lacked capacity, they should be consulting with you. But again ultimately it is not your decision - any disagreement should be equally discussed as part of that best interest process. 

However if someone had suggested a possible procedure for a relative of mine. I would certainly be asking about the follow-up and what had happened. Not just presuming. 

Ref DNAR. That is a health  decision. The  or the family have to be consulted but if a professional thinks that resuscitation is futile or not in the person’s best interests you can’t override that and insist CPR is attempted.