power of attorney question (estranged siblings)

[dwnb01]

Hi everyone,

This is my first post - I have a quick question about LPA.

My father passed away in 2022, leaving everything to my mum but beforehand had granted LPA to me and my two sisters.

My mother's mental health was rapidly deteriorating at the time - and she was eventually diagnosed with Parkinson's, but she is now showing definite signs of Parkinson's related dementia and has regular hallucinations and talks in a nonsensical way. I don't think she could be described as being in anyway compis mentis and of sound mind and body.

My parents owned a foreign property which my sister's want to sell to help pay for care home fees - I want to keep the property and rent it out to fund her care that way.

Where do I stand legally? Can't I 'veto' their decision, or do 2 votes beat 1?

Also, because my mother is very frail now and has regular falls which require regular operations in hospital would she qualify for CHC, so subsidised care, or is that only an option when she has burned through her life savings down to her last 23k?

Many thanks for any help

 

[nitram]

My father passed away in 2022, leaving everything to my mum but beforehand had granted LPA to me and my two sisters.

The LPA ceased on his death.
Does mother have capacity?
If not has she appointed an LPA?

 

[SAP]

Unless you have LPA for your mum , neither you or your sister can sell anything. You will need to apply for guardianship via the Office of the Public Guardian if as you say your mum no longer has mental capacity.

 

[northumbrian_k]

Hi @dwnb01 and welcome to Dementia Support Forum our friendly and helpful community. As @nitram has said, Power of Attorney for your father is no longer applicable given his death. If you (or your sisters) were appointed as an Attorney by your mother then you will be able to act in her best interests. That is what should determine how best to use the property abroad. If your mother no longer has capacity and has not appointed you as Attorney then you aren't able to act on her behalf and may need to seek Deputyship. I can't say anything about that, having no direct experience but there is guidance here:

Deputies: make decisions for someone who lacks capacity

How to become and act as a Court of Protection deputy - eligibility, responsibilities, how to apply, fees, supervision and when your deputyship ends.

www.gov.uk

 

[Kevinl]

As nitram asks is the PoA for mum held by dad, sorry to hear about dad passing away, but if held the PoA for mum it ended when he passed, if he was the sole holder of the PoA.
Another question would be assuming there are 3 children (and I'm guessing, reading between the lines that's the situation) is the PoA held jointly i.e. all 3 of you have to agree or a majority can or severally in which case you can act alone.
Complex piece of law and within the UK rules do vary so the country covering the might matter, Wales and England are broadly similar, Scotland differs and Northern Ireland no idea, lovely country though it is.
This where mum lives so what rules she is covered by, just which of the 4 sets of rules cover her not you.
K

 

[Bod]

The foreign property will have to be dealt with under that country’s laws, which could be very different to the UK.

Bod

 

[dwnb01]

Many many thanks for your replies everyone - it's a great help. There were 2 LPAs done - one for my late Father and one for my mother, so I assume this is still in force. Sadly, as is the case with many siblings, I don't really get on with either of them (although my two sisters get on well with eachother). So assuming the LPA for my mum is still in force, can I object legally to my sisters decision to sell the foreign property? Would my mother need to do a test to prove that she is no longer capable of making rational decisions? I should have mentioned in my 1st post that we all live in England, so English law applies here. As far as long term care goes, does anybody have any tips? My mother's estate is worth almost 7 figures (nothing special these days, I know) but care home fees are absolutely crippling...

 

[dwnb01]

Perhaps i should mention foreign property is in Spain

 

[Sarasa]

Welcome to Dementia Support Forum @dwb01. Would it be possible for you and your siblings to have a meeting and thrash out the pros and cons of each option. Do you have any figures as to how easy it would be to rent the property out, what the overheads would be etc etc? If you do and it looks financially a good idea I think you'd have a better chance of persuading your sisters.
I know nothing about renting out property either abroad or here, but I would have thought unless there were strong reasons to keep the property selling it would be far a far more straightforward option. I'm sure someone who has done this will be along soon with their take on the matter.

 

[nitram]

Would my mother need to do a test to prove that she is no longer capable of making rational decisions? I

No, unless the LPA says it can only be used if she lacks capacity.

I should have mentioned in my 1st post that we all live in England, so English law applies here.

Sale of property in Spain comes under Spanish law

You will have to check the validity of the LPA in Spain

https://www.buckles-law.co.uk/blog/assets-england-and-spain-wills-and-powers-of-attorney/#:~:text=A%20legalised%20sworn%20translation%20of,to%20whom%20the%20estate%20belongs.

 

[Kevinl]

No, unless the LPA says it can only be used if she lacks capacity.


Sale of property in Spain comes under Spanish law

You will have to check the validity of the LPA in Spain

https://www.buckles-law.co.uk/blog/assets-england-and-spain-wills-and-powers-of-attorney/#:~:text=A%20legalised%20sworn%20translation%20of,to%20whom%20the%20estate%20belongs.

Respect, covered it all pretty much with that link, how do you do it. K

 

[nitram]

Respect, covered it all pretty much with that link, how do you do it. K

Mr G and /#:~:text=A%20legalised%20sworn%20translation%20of,to%20whom%20the%20estate%20belongs.
after URL to create highlighting.

 

[Kevinl]

Mr G and /#:~:text=A%20legalised%20sworn%20translation%20of,to%20whom%20the%20estate%20belongs.
after URL to create highlighting.

As if. K

 

[Veritas]

Hi everyone,

This is my first post - I have a quick question about LPA.

My father passed away in 2022, leaving everything to my mum but beforehand had granted LPA to me and my two sisters.

My mother's mental health was rapidly deteriorating at the time - and she was eventually diagnosed with Parkinson's, but she is now showing definite signs of Parkinson's related dementia and has regular hallucinations and talks in a nonsensical way. I don't think she could be described as being in anyway compis mentis and of sound mind and body.

My parents owned a foreign property which my sister's want to sell to help pay for care home fees - I want to keep the property and rent it out to fund her care that way.

Where do I stand legally? Can't I 'veto' their decision, or do 2 votes beat 1?

Also, because my mother is very frail now and has regular falls which require regular operations in hospital would she qualify for CHC, so subsidised care, or is that only an option when she has burned through her life savings down to her last 23k?

Many thanks for any help

If the LPA is set up so that all the attorneys have to agree before any decisions are made, then yes you could in theory ‘veto’ a decision to sell the property in Spain. However, it is unlikely that the LPA has been set up like that, as the OPG guidance advises against this.

If you are thinking that the property might increase in value by not selling it now, this is something you need to check out, with people who know the market in the area concerned very well and are familiar with how property prices have changed over the years. I have more knowledge of France, where it can be extremely difficult to shift properties, and from what I can make out values have not increased that much.

In your assessment of the risks and benefits of selling now, you might like to think over:
- who is going to manage the property and the rentals - the cost of local support (which you are likely to need) may make a big hole in the income you receive
- there may be a cost involved in meeting legal requirements in order to rent the property out in the first place
- any income will be taxable - so the contribution any net receipts might make towards care costs may not be in proportion to the costs of achieving that income
- what will happen when your mother dies - if your sisters already want to sell it is unlikely that their position will change, so it could be that all you will have done by insisting that it is kept for now is delay the inevitable, while incurring the stress of managing a property a long way away

On the CHC question, this is entirely unrelated to how much the PWD has in savings and income. If your mother’s healthcare needs become so severe that she qualifies, the funding is provided by the NHS.

 

[nitram]

what will happen when your mother dies

Is there a Spanish will?
An English will may not be completely valid in Spain especially where land is concerned.
For intestacy don't know which national law applies.

 

[Tired Teacher]

Hi everyone,

This is my first post - I have a quick question about LPA.

My father passed away in 2022, leaving everything to my mum but beforehand had granted LPA to me and my two sisters.

My mother's mental health was rapidly deteriorating at the time - and she was eventually diagnosed with Parkinson's, but she is now showing definite signs of Parkinson's related dementia and has regular hallucinations and talks in a nonsensical way. I don't think she could be described as being in anyway compis mentis and of sound mind and body.

My parents owned a foreign property which my sister's want to sell to help pay for care home fees - I want to keep the property and rent it out to fund her care that way.

Where do I stand legally? Can't I 'veto' their decision, or do 2 votes beat 1?

Also, because my mother is very frail now and has regular falls which require regular operations in hospital would she qualify for CHC, so subsidised care, or is that only an option when she has burned through her life savings down to her last 23k?

Many thanks for any help

I'm not sure about the property, but we are currently awaiting a CHC assessment for my dad who is in end stage Lewy Body Dementia with Parkinsons. They avoid (wherever possible) completing CHC assessments in the hospital, as they want to assess people when they are at their fittest and most settled. The care home dad is in applied 5 weeks ago and we are still waiting to hear when it will happen. We are currently self-funding, so you can ask for the assessment at any point, but it is notoriously difficult to get for people with Dementia because they perceive a lot of their needs to be social care needs and not primary health needs (you meed to have a primary health care need to be CHC funded).Dad is bed bound, unable to speak clearly anymore, cannot do anything for himself, and has a large pharyngeal pouch and aspirates regularly. He is also recovering from a broken hip and has had repeated infections- we have been told he is in the last year of life and they have talked about stopping medication. Despite all of this we have been told by several staff in the hospital and care home that it's still unlikely we'll get funding. So, definitely try, and be involved in the assessment process, but prepared that they may say no. Sending you, and your mum lots of good wishes x

 

[backin]

My mother's estate is worth almost 7 figures (nothing special these days, I know)

Ummm.... I think we live in different worlds 😂😂

 

[Lawson58]

I think life would be easier to manage if you didn’t have to worry about what was happening with the property in Spain. You could easily invest the money in something in UK that could give you a good return without all the hassles of renting abroad. Perhaps a financial advisor might be a good person to talk to in that regard.

 

[dwnb01]

Ummm.... I think we live in different worlds 😂😂

Fair comment... My parents were typical boomers really - both born in 1946 and bought the family home for a song in the 1980s then (like millions of others) watched it explode in value and this, coupled with inheritance from their parents means that an estate in the region of 7 figures isn't that unusual these days.

But old age hasn't been kind to my parents (as I know it isn't for many others). My father died slowly in excruciating pain from vasculitis/leg ulcers (I'd describe it as huge open wounds on the lower legs and feet which are impossible to keep sterile - sepsis gets you in the end). He did have a 20 year retirement though - I'll still be working 20 years after I die 🙁

I didn't see my mother for 2 years between Christmas 2019 and Christmas 2021 because I was working abroad and travelling was complicated due to COVID. In those 2 years she had literally aged 20 years - i couldn't believe the devastating physical and mental effects that Parkinsons has on the body.

For me, the hardest thing to witness is the loss of dignity that often comes with old age, it's truly heartbreaking, but I know millions of others are in the same boat - I dread to think what's in store for me though...I suppose we all just have to carpe as many diems as we can, while we still can.

A big thanks for your replies - I'll read the links with interest and yes, selling the property in Spain might be the simplest thing from a legal perspective....

 

[Bod]

Having been involved in selling a Spanish property, I can say it was neither quick or cheap.
Involving a trip to the Spanish Consulate in London, a specialist solicitor in Beconsfield, setting up a Spanish power of attorney, never mind an Estate Agent. or offical translations.
The trip to London had to be done by all owners at the same time, to sign in person. In our case 2 living owners (both elderly) and one excutor for the other owner.

Bod