Legally capable of making decisions ?

[Koiman]

Hi -

Around 12 months ago my father in law suffered a blackout and was subsequently diagnosed with vascular dementia, although symptoms were fairly mild.

Roughly 6 months later another family member escorted him to the solicitor's office where he was persuaded into signing over the sucessful business that he spent 40 years building from scratch without receiving a penny in return. The rest of the family have only just found out about this after my father in law started complaining that he was running out of money. He did not realise what he had done and says he did not fully understand what he was signing, he just trusted the other family member.

Does anybody know if there is any chance that we could legally overturn the agreement given his previous diagnosis of vascular dementure ? Is there any sort of legal precedent ?

My father in law has just had another mini stroke and is now unable to do any more meaningful work, so a lump sum or regular monthly payment from his business would really help.

Any advice would be most welcome.

Dave.

[Hoglet]

I am in the middle of getting a power of atterny over my husbands affairs.
Point one is notifying all parties who may have a concern
Point two if they have a dianosis of any mental health condision this must be noted and evedence has to be submitted that he has the capasity to understand the consquences.
So i would say yes this can be sorted, I do not know wether it can be overturned but it can be challanged.
On my power of attoney i have free range to do what i like when i get it, but if i want to sell the house, or any other major dicision then the solicitor has to be informed and he will work out wether it is in my husbands best intrest, this is because my husband does not have any family who can forfill this part.
So good luck.

[nitram]

EDIT: Change all references to 'father' to read 'father in law', Sorry


You infer that at the time of signing over the business your father had received a diagnosis of vascular dementia.

Was the other family member aware of this?
Was the solicitor aware of this?

Unless the solicitor was aware if your father acted normally and did not appear to be under pressure it is difficult to see any reason why he should not have gone along with the transfer.

If the familiy member was aware and persuaded your father to do the transfer and if you have proof of these facts you may have a case under adult safeguarding in which case contact the COP.

There is a possible other problem in regard to deprevation of assets if your father has to go into care, there is no time limit on how far bak the LA can go, any transfer of assets has to be made before the person showed signs that could mean that they would require residential care in the future.

Does anybody have an EPA or LPA? If not there may be a need to apply to the COP for a deputy to be appointed.

You need to take legal advice.

[nmintueo]

I agree with Nitram. You must get legal advice, and the sooner the better.

Mental Capacity Dispute Proves Costly
21 March 2012
When an elderly man who had suffered a stroke befriended a woman to whom he gave his entire life savings of more than £500,000, opposition from his family was inevitable.
... The claimants sought to have the gifts set aside (i.e. made repayable) on the ground that their father lacked mental capacity when they were made.
http://www.warners-solicitors.co.uk/...-proves-costly

With an existing diagnosis of vascular dementia, you can argue that your father-in-law lacked capacity.

With his own statement that he simply relied on the other family member to make the decision, you can argue undue influence.

If he gave away a business he built over a lifetime, I imagine there's a considerable amount at stake. I would definitely try to find a solicitor with relevant experience and take legal advice.

[Koiman]

EDIT: Change all references to 'father' to read 'father in law', Sorry

You infer that at the time of signing over the business your father had received a diagnosis of vascular dementia.

Was the other family member aware of this?

Yes, but I doubt very much that it could be proved that he was.

Was the solicitor aware of this?

No, not at the time but he is now.

Thanks for your advice, I will pass it on to the family.

Please could you advise on the abbreviations though - I'm new to all this.

LA I'm guessing - Local Authourity ?
Not sure on the others though ????

We have not yet applied for Power of Attourney but this will be happening fairly shortly.

I think that the family solicitor is currently attempting to get the contract re-negotiated in light of the diagnosis but he has no power to force it, he is trying good will at the moment. We will see how it goes but I am not hopeful.

If it results in a negative outcome then Legal advice will be sought with another solicitor.

Thanks again.

[nitram]

LA - Local Authority

COP - Court of Protection ( Court with jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves)

EPA - Enduring Power of Attorney (Could be made by donor till end of October 2007)
LPA - Lasting power of Attorney (Replacement for EPA after October 2007)

Unlike a General Power of Attorney both EPAs and LPAs can be used by the attorney after the donor looses capacity.

Also see
http://forum.alzheimers.org.uk/showt...g-Point-Jargon

[nmintueo]

I take it that the family solicitor you're now dealing with is not the same solicitor who acted in the original deal? Also, that that solicitor was acting for the family member, not for your father-in-law?

If it's a matter of civil law, I expect the standard of proof that the family member knew about the capacity issue is the 'balance of probability' (not the higher standard required for criminal cases). So if there are witnesses to confirm, 'we all knew about it', or 'I told X about it', etc, that might be enough.

You might not even need to show that he did know, only that he reasonably should have:

In England, Wales and Northern Ireland, where a party to a contract lacks capacity, the contract may be voidable if it can be shown that the creditor knew - or should reasonably have known - that the borrower lacked capacity at the time he entered the contract.
http://www.oft.gov.uk/shared_oft/con...oft1293con.pdf

(That's talking about credit agreements, but the same prinicple should apply to other contracts.)

Since your father-in-law signed away the firm and got nothing in exchange, you might also argue that it was an unconscionable bargain. Voiding the contract might depend on establishing that the family member knew about the lack of capacity, but if the deal can be shown to be unconscionable, it might be voidable whether he knew or not.

[nitram]

"...Around 12 months ago my father in law suffered a blackout and was subsequently diagnosed with vascular dementia, although symptoms were fairly mild.

Roughly 6 months later another family member escorted him to the solicitor's office....

....My father in law has just had another mini stroke and is now unable to do any more meaningful work...."

It is unlikely that the other family member is going to admit to knowledge of your father in laws condition which would prevent the transfer.

This means that proving whether your father in law had sufficient capacity 6 months ago at the time of signing is the problem.

Vascular dementia tends to progress in a series of sudden downturns, his dementia may have remained mild until his recent stroke.

All dementias can vary with time, he could have been incapable both the days before and after the signing but capable on the day he signed. It is reasonable to assume that the solicitor will testify that in his opinion your father in law did not exhibit any sign of confusion.

When was the diagnosis of mild vascular dementia made?
Were there any blackouts between this diagnosis and the signing?
Are the only recorded incidences of blackout/stroke the two you mentioned?
Are there any medical records of the progression of his incapacity?

[WittsEnd]

Any large firm of attorneys should have a solicitor who specialises in Elder Care. It is vital that you employ someone with this experience or you will be paying out £££ for nothing. I telephoned a number of law firms until I found someone who specialises.