clarity on legal obligations

[Justin62]

I really need some guidance on legal obligations regarding my mum who went into a care home recently.
My mum is self funding. Luckily her pension is enough to cover her care home costs. She owns and lived in her house before going into the home after a DOL - Deprivation of Liberty order was applied for her after medical and social services assessment - after a hospital stay - i.e. she did not have mental capacity to stay in her own home.
My sister lived with her, but worked full time, so could only be with her in the evenings and weekends.
My sister still lives in my mums house, and does not pay rent. She held a joint bank acct without my mum, but did not contribute to it. She helped my mum deal with her financial affairs, such as setting up Direct Debits to pay household bills, such as utility bills and insurance.
My mu did not grant LPA to anyone before she was diagnosed with Alzheimers, so this leaves us in the situation where someone would have to apply for DeputyShip over her affairs.
Is this absolutely necessary legally, and if it is not done, could questions be asked later by the Court of Protection about the handling of her financial affairs. I just want to make sure things are dealt with properly at this stage.
Thanks.

 

[Katrine]

Hi Justin, welcome to TP. I will start by saying that I am not legally qualified; I am just offering advice as a lay person. I am guessing that you are seeking advice here because your mum's circumstances have changed recently, you can see that action needs to be taken, but are not sure how to raise this with your sister?

I will assume that your mum was deemed to have capacity until the point, quite recently, when she had a health crisis and was assessed as no longer having capacity. Up until that point she had every right to permit your sister to live with her rent free as her live-in carer and informal administrator. Your sister would therefore have done nothing wrong financially, IMO. It's what she should do now that is the issue.

As I understand it, the Public Guardian has a statutory duty to safeguard the welfare and financial interests of people who do not have mental capacity to manage them for themselves. This is achieved by an application to the Court of Protection for someone to be given the appropriate delegated legal authority. The Office of the Public Guardian may not be aware of your mum's current situation, but it will eventually come to their attention, even if no Deputyship application is made by you and or your sister.

By NOT taking the initiative to apply, you would be putting yourselves on the back foot. The OPG might be suspicious that you were not suitable, or else why had you not applied? The risk here is of the OPG recommending to the Court that an independent Deputy is appointed (at additional cost to your mum). The COP is reluctant to 'outsource' the role of Deputy when family members are available, but there would certainly be very close scrutiny of your mum's financial affairs, and those of the prospective family Deputies.

I would suggest that you and your sister apply to be Deputies with joint and several authority, ideally with a substitute Deputy's name included in the application - a person who would step up if the main Deputies were no longer able to act. Belt and braces, in case both of you fall under a bus, as they say.

My personal experience has been in becoming my mother's legal Guardian in Scotland. This is similar to Deputyship, but not exactly the same. I had to produce a full Inventory of her estate as part of my application. Then after authority was granted I had to produce an updated Inventory, and a detailed Management Plan for the first year. At the end of Year 1 I submitted the Annual Account, which had to match the expenditure approved by OPG via the Management Plan, and included copies of bank statements, and quotations and receipts for all items of expenditure over £100. A very heavy duty monitoring regime; more onerous than it should be for you I believe. If you are in England or Wales I think Deputies only have to provide financial details in the application, then submit an Annual Report at the end of each year. The order you are granted MAY include an extra level of direct supervision, depending on circumstances.

I cannot therefore advise from experience on how a Deputy gets approval for the way they plan to manage someone's financial affairs, e.g. making decisions about your mum's property, which she is still paying to maintain without, currently, any rental income.

You should be aware that your sister cannot continue to operate the joint bank account on the current informal basis. Notifying DWP, HMRC, uncle Tom Cobbley and all of your mum's new address will raise other challenges. Thus far, it doesn't sound as if anyone has acted improperly, but the longer things go on without regularisation the more chance there is of problems, such as the bank deciding to freeze your mum's joint account.

You should get good advice on your options from a solicitor who specialises in this sort of work. Google 'Solicitors for the Elderly'. The OPG can also offer advice on where to go from here.

 

[Justin62]

As I understand it, the Public Guardian has a statutory duty to safeguard the welfare and financial interests of people who do not have mental capacity to manage them for themselves. This is achieved by an application to the Court of Protection for someone to be given the appropriate delegated legal authority. The Office of the Public Guardian may not be aware of your mum's current situation, but it will eventually come to their attention, even if no Deputyship application is made by you and or your sister.

By NOT taking the initiative to apply, you would be putting yourselves on the back foot. The OPG might be suspicious that you were not suitable, or else why had you not applied? The risk here is of the OPG recommending to the Court that an independent Deputy is appointed (at additional cost to your mum). The COP is reluctant to 'outsource' the role of Deputy when family members are available, but there would certainly be very close scrutiny of your mum's financial affairs, and those of the prospective family Deputies.

I would suggest that you and your sister apply to be Deputies with joint and several authority, ideally with a substitute Deputy's name included in the application - a person who would step up if the main Deputies were no longer able to act. Belt and braces, in case both of you fall under a bus, as they say.

I cannot therefore advise from experience on how a Deputy gets approval for the way they plan to manage someone's financial affairs, e.g. making decisions about your mum's property, which she is still paying to maintain without, currently, any rental income.

You should be aware that your sister cannot continue to operate the joint bank account on the current informal basis. Notifying DWP, HMRC, uncle Tom Cobbley and all of your mum's new address will raise other challenges. Thus far, it doesn't sound as if anyone has acted improperly, but the longer things go on without regularisation the more chance there is of problems, such as the bank deciding to freeze your mum's joint account.

You should get good advice on your options from a solicitor who specialises in this sort of work. Google 'Solicitors for the Elderly'. The OPG can also offer advice on where to go from here.

I have asked my sister about the situation and she said that had 'asked people at work about it', and they said everything sounds fine. She does work for the local council Adult and Social Care Dept. which covers issues to do with the welfare of the elderly, so she said she knows what she is doing. But she does not seem keen to apply for deputyship or change any of the financial arrangements at present, and gets upset if I challenge her about it, as the arrangement has stood as it is since before my mum had alzheimers.
She insists that she and her husband - who lives in the house as well do pay their own bills, but I dont understand how this works, as the bills were paid by Direct Debit from my mums account, and she said this cannot now be changed as my mum has lost mental capacity.
I am not sure what to do, as it seems to be a very sensitive issue for her, which I understand, but I have told her directly that I dont want her or indeed myself to get into trouble over this!

 

[Justin62]

I will consult a solicitor, and thanks for your'e input. However I am not keen to name anyone at this stage - i.e. my sisters family, as I dont want to upset things too much. She has a son at school who also lives with them, and they currently have nowhere else to live.
I dont mind them not paying rent on my mums house, but if/when the situation comes to light - for example, when my mum passes - though she is quite physically fit as yet, and luckily, still quite happy, although her memory is very poor, - is there a possibility they could be charged for rent arrears for all the time they have lived there? If so, I really dont know what would happen, as they cant really afford it. They do work, but dont earn alot.
My mum would not really understand any of this, if I tried to talk to her about it, and it might upset her, so its really past the stage of involving her at all.
Thanks for any replies.

 

[Beate]

If they work but don't earn enough to pay rent then they should apply for assistance in form of working tax credits or whatever it is, I'm not an expert. I don't think it's fair to live rent free in a house that belongs to a vulnerable elderly person who might need this money to pay for care at some point. Furthermore, it's downright dishonest to have her Mum continue paying utility bills for a property she no longer lives in. The sister may inherit some of her money after her death but until then it's hers and should be treated as such. Someone will need to apply for deputyship to sort this mess out and I don't think your sister is the best candidate for this. Frankly, it upsets me that someone who works for Adult Social Care should act in this way. I know the fact it's your sister puts you in a difficult position, but this needs sorting. A solicitor should be able to tell you and your sister what needs to be done. No one wants her out on the street but once a person loses capacity, their possessions and property need to be safeguarded from anyone who could take advantage.

 

[Justin62]

Thanks very much for youre input.
It didnt occur to me that my sisters family could apply for tax credits. If this is the case, then this might not be such a problem. Obviously I need to speak to her about this, although I'm certainly not looking forward to it.
Last time I mentioned the situation she was very angry, as she says she was the main carer for my mum before she went into the care home. That is true, but she did get Attendance Allowance for my mum, which I think is still paid, and she did not give up her job to look after my mum fulltime.

 

[Beate]

Attendance Allowance is for your Mum, not your sister. It can be used to buy in care but your sister cannot just take it saying she is the main carer. As much as we all would like to, we can't pay ourselves a salary from the caree's money or decide not to pay our way to make up for caring responsibilities. No one has an obligation to care so she must have taken the role voluntarily. AA doesn't stop in a care home if the person is self-funding but it's for her not for your sister, and I am really concerned about that joint bank account.

 

[Justin62]

Thanks beate.
To be honest, so am I. My sisters name was put on the account some years ago when my father died, apparently at the suggestion of my father, so she could help manage my mums financial affairs. I never understood why this happened, or indeed why my mum agreed to it, as she did used to keep a very close watch on her finances, and question everything that my sister did with regard to the account, so I know nothing could have gone wrong before my mum lost mental capacity.
But yes, to be honest I am concerned about the situation, and I'm glad that I have some confirmation that I am right in being so.
I dont understand why the bank havent contacted my sister regarding this, because she has been paying my mums care home fees from the account for some months now.

 

[Katrine]

Living in a CH does not automatically mean the person has lost capacity. The bank won't intervene unless they believe something is amiss.

The OPG, however, WILL find out about this situation and will advise the COP that she is not a fit person to be a Deputy. Your sister is bullying you to keep quiet. If you don't take action then it also reflects badly on you. A court appointed Deputy will act in your mum's best interests, and will take action to terminate this financial exploitation.

How long do you think your sister will keep her job in Adult Social Services when they find out she has been stealing from a vulnerable adult? She could soon be facing losing her job and her home.

Now is the time to act, when the 'debt' is small. If your mum has only been in the CH for a short time it is not unreasonable for it to have taken the family a little while to work out what to do next, especially with it being Christmas time when offices are closed. I urge you to see a solicitor for advice on how to put things back on the correct legal footing before your sister digs herself a hole that she cannot climb out of.

 

[Pickles53]

I dont understand why the bank havent contacted my sister regarding this, because she has been paying my mums care home fees from the account for some months now.

They may not realise what is happening, especially if online banking is being used. My mum told me her PIN and wanted me to use her card to pay in shops and get cash out for her from ATM machines. She also asked me to write out cheques which she would then sign. This would probably never have been noticed by the bank, but I was very uncomfortable with the situation as her mental capacity declined and so registered the POA; the bank then gave me a separate debit card and cheque book with my name and 'POA for mum's name' on them.

Your mum's AA and all other income must now be used only to pay your mum's expenses at the care home. Whatever previous arrangements may have applied, if she does not have mental capacity, the legal position is that her money must not be used for anyone's benefit other than her own. You do not know how long your mum's money needs to last and if in the future she needs any support from SS they will go back as many years as they need to to look at deprivation of assets.

Your sister is simply storing up problems for her own future. If she works for Adult Social Care she should really know better. I wonder if she has explained the full situation to her colleagues but I suspect not. If her own family income is insufficient for their needs, which includes paying rent and the relevant bills,she should apply for the appropriate benefits.

Please try and encourage her to sort this out sooner rather than later. This is all gong to come to light eventually, and if the bank has any suspicion about what is going on with your mum's account they will freeze the account and then the situation will be far worse.

I am also concerned that if you do not take some action you could be considered to be colluding in what is probably fraudulent behaviour by your sister so you also need some legal advice for yourself. Perhaps Age UK or AS helplines would be a good place to start.

 

[Selinacroft]

Hi
I am jumping into this thread somewhat alarmed at what the future may hold for myself. I care for dad and have a regular standing order from his account to myself for the Attendance Allowance. I also work a few hours and claim Carers Allowance.
I live in Dad's house and deal with finances. I don't hold POA nor have a joint bank account but I do have third party access to his bank account. Dad also writes me cheques as top ups but I have been advised to keep shopping receipts and "bill him" for 50%.
My brother knows I keep the AA as "income for myself" and is happy with this as he plays no part in care and is very comfortably off with double pension of his own.
Dad has always refused POA and says "they can sort it out". Numerous attempts to change his mind have failed.
If Dad were to loose capacity in the future , would I find myself in the same position as your sister- up the creek without a paddle?

 

[fizzie]

Selinacroft
You can't keep Attendance Allowance for yourself - it is for the person you care for - it would be their right to claim it whether or not you were sharing the house with them and you need to keep detailed records of how it is being spent! You can be asked for them at any time.

The Carers Allowance is yours - because you are caring for him.

Also assuming if you are sharing the house the presumambly you are paying half the bills and the council tax and those kind of expenses but you are accountable for any of his money that you spend obviously and should have detailed records.

 

[canary]

Hi
I am jumping into this thread somewhat alarmed at what the future may hold for myself. I care for dad and have a regular standing order from his account to myself for the Attendance Allowance. I also work a few hours and claim Carers Allowance.
I live in Dad's house and deal with finances. I don't hold POA nor have a joint bank account but I do have third party access to his bank account. Dad also writes me cheques as top ups but I have been advised to keep shopping receipts and "bill him" for 50%.
My brother knows I keep the AA as "income for myself" and is happy with this as he plays no part in care and is very comfortably off with double pension of his own.
Dad has always refused POA and says "they can sort it out". Numerous attempts to change his mind have failed.
If Dad were to loose capacity in the future , would I find myself in the same position as your sister- up the creek without a paddle?

If your dad loses capacity with POA then you can apply for Court of Protection deputyship (I hold this for mum as she wouldnt do POA either) which gives very similar powers as POA. You do have to submit annual financial reports to the Office of Public Guardians and need to be able to account for every penny of their money!

 

[Justin62]

Thanks alot Katrine and Pickles53.
Of course it is quite possible that my sister hasnt told the bank that my mum has lost mental capacity. My sister wrote all the cheques from the acct. before this happened and nothing has changed, so they quite probably dont know.
I always thought it might be problematic at some point that my mum would not write cheques, as she was very strict about scrutinising her bank statements, and in fact managed to save money from her pension and put it into a separate savings acct. I dont know if my sister has access to that or not.
In fact at one point when my mum was still living at home but had been diagnosed with Alzheimers, a letter arrived from the bank regarding the fairly recently set up savings acct. My sister asked my mum about it, and it appeared that my mum had actually forgotten setting it up! I was quite alarmed, as was my sister, and my sister did try very hard to get my mum to agree to give her POA before she completely lost mental capacity but my mum always insisted that she wasnt ill, and completely refused, so now we are in this mess!
If I wade in now I think my sister might have some sort of breakdown - I dont know.
I have looked into the tax credits issue now, after another member of the forum mentioned it, and I realize that in fact with her and her husbands joint income, she wouldnt be entitled to any. I think her major worry is that the council have been cutting alot of jobs recently, and she is very worried that she may lose her job through council cuts.
I would be opening a huge can of worms, and even my husband doesnt like the idea of me doing this. My sister refuses point blank to move from the house, and has even said she would be too upset to sell it when my mum passes, despite what is in my mums will.
The whole business is really worrying and stressful. If I could get someone to contact her about the possible legal ramifications without her knowing I initiated I would definitely do that.

 

[Justin62]

Obviously it would be best if your'e dad did give you POA at some point. This seems to be a huge issue for loads of people because alot of people dont want to do it. My husbands mum did this with him and his siblings without any qualms, but I know its a really sensitive issue for many families.

 

[fizzie]

if their joint income is too high to get tax credits then you don't need to worry about their financial standing - they are ok for money even more so as they are living rent free!

I also think that you can be held liable because you are aware of what is going on. The joint bank account and your sister writing chqs is worrying. Others might know but I would have thought you could alert the bank and make it clear that you don't want to give your name or details but you really do need legal advice as Beate says. The longer term ramifications are huge - especially with the connection with Adult Care.

She doesn't have any choice about the house - you would have to get legal advice on that too. She isn't thinking straight - it is stealing to take this money from an elderly person.

 

[Pete R]

Selinacroft
You can't keep Attendance Allowance for yourself - it is for the person you care for - it would be their right to claim it whether or not you were sharing the house with them and you need to keep detailed records of how it is being spent! You can be asked for them at any time.

The Carers Allowance is yours - because you are caring for him.

Also assuming if you are sharing the house the presumambly you are paying half the bills and the council tax and those kind of expenses but you are accountable for any of his money that you spend obviously and should have detailed records.

As Selinacroft's Dad has capacity he can do what he wants with his AA. If that means giving it to Selinacroft then so be it. It does not have to be accounted for. I fail to see who you think will come asking?

Even if he does lose capacity the arrangement can continue. It will only matter if he needs LA help towards payment for his care.

As for paying half of any bills that is still a matter for the Dad. It may be helpful for Selinacroft to keeps records of what amount of her own money she has used towards up keep of the house but there is no obligation to.

 

[Justin62]

I will get legal advice - obviously I need to speak to a solicitor who specialises in these affairs. I know that some dont.
Thanks.

 

[fizzie]

As Selinacroft's Dad has capacity he can do what he wants with his AA. If that means giving it to Selinacroft then so be it. It does not have to be accounted for. I fail to see who you think will come asking?

Even if he does lose capacity the arrangement can continue. It will only matter if he needs LA help towards payment for his care.

As for paying half of any bills that is still a matter for the Dad. It may be helpful for Selinacroft to keeps records of what amount of her own money she has used towards up keep of the house but there is no obligation to.

They are entitled to ask at any time - it's not just a freebie to be added to the general income - it comes out of the taxpayers pockets (mine included) and it is intended to help with personal care needs ........ and with the tightening up of benefits that is exactly what they are likely to do!! I am all for people getting help and I volunteer locally and help people fill in the forms but it needs to go to the right place!

As you say if he does have capacity that's ok but it still has to be accounted for - if he needs care from the LA then they will want it accounted for

 

[Katrine]

Selinacroft, your dad still has mental capacity. He can choose to make regular payments to you out of his income (income includes pensions and benefits). If he can afford it without experiencing financial hardship, and provided he has specifically agreed to it.

Based on the lower rate of AA, if he is making equivalent payments to you then you are receiving just under £3K per year, so that wouldn't even affect future Inheritance Tax liability on his estate. The money you receive from your dad counts as your income. It therefore might affect your own eligibility for means tested benefits. It also moves you £3K closer to the threshold of your personal allowance for Income Tax. The standard Personal Allowance for 2015-16 is £10,600, which is the amount of income you don’t have to pay tax on. This will increase slightly from 6 April 2016.

On the other subject of LPA, I wish our elderly relatives could understand that by withholding POA they are effectively surrendering future control of their lives to strangers, rather than their family. Strangers will have details of their private finances and may also be making decisions about where they are to live, whether their house gets sold, and so on. Added to that, the several thousands of pounds that it will cost to obtain Deputyship/Guardianship will be taken from their money! So the real choice is to spend a couple of hundred pounds on LPA now, with your chosen family Attorneys not being required to submit accounts to the OPG, or to spend thousands later on getting authority via the Court, and subjecting your family members to a burden of ongoing bureaucratic supervision.