It appears LPA is no longer enough to satisfy the Land Registry...

Shari12

Registered User
May 10, 2016
12
0
My Mum moved into a Care Home in June and I am in the process of selling her house to fund her care.
We are now almost 3 months into the conveyancing process and despite having LPA over Mum's finances and property, it appears that's no longer enough to satisfy the Land Registry.

According to the Buyer's Solicitor, they are insisting on a letter from Mum's GP, confirming she doesn't have the mental capacity to represent herself. I thought that was the whole point of LPA. Has anyone else experienced this?

Obtaining such a letter is proving to be very difficult, because, when Mum moved into the CH, she had to change her GP and the new GP (who has only met her once, very briefly) is refusing to write the letter until my Mum undergoes a full Psychiatric Assessment, (in other words, a second diagnosis), a process that took 9 months last time.

My Mum was diagnosed with Alzheimer's in August 2016, by which time she was well into the mid stages.
She certainly hasn't improved in the last 2 years and can no longer sign her own name, or remember what she was told 2 minutes ago.
I tried explaining to her new GP that, if my Mum had sufficient mental capacity to be selling her own home, she'd still be living in it... she wouldn't need full time residential care and I wouldn't need to be acting as her Attorney.

I'm not sure how much more of this I can take... how many more hoops will I be made to jump through to protect my Mum and keep her safe... I'm hanging on by a thread...
 

try again

Registered User
Jun 21, 2018
1,308
0
Does your poa state that you can handle your mum's affairs immediately or when she no longer has capacity?

Having applied recently, I did wonder about the 'process' of taking over when capacity had gone and how this was measured.
Sorry no advice, can the care home help at all?
 

Kevinl

Registered User
Aug 24, 2013
6,063
0
Salford
The problem is that regularly on here people tell you to register the LPA straight away so it's in place for when you need it, that means that anyone holding an active POA doesn't mean it prove that the donor of the LPA doesn't have capacity.
People also advise that you don't put any conditions on an LPA like that to have it activated like the opinion of a doctor or similar person so holding an LPA alone doesn't prove anything, LPA's don't prove lack of capacity.
The most expedient thing might just be to pay for an Independent Mental Capacity Advisor (IMCA) to come and do an assessment as they're professionally qualified to do one but your mum will have to pay, other than that you can try and do it through the NHS but as this is to do with her finances not her health then they may not want to et involved.
A GP could do the same but they are allowed to charge for their services as it's not part of their NHS contract, hence why I think going down the NHS route may not work either.
I can see where you're coming from and haven't heard of this happening before, but if the Land Registry start to do this I can see their point as an LPA is not a diagnosis as a lack of capacity because you can have an LPA and activate it before someone loses capacity and that's potentially a loophole for exploitation,.
Google for an IMCA in your area and see what you get, one was appointed for my wife when she was sectioned and I found him very helpful.
K
 

love.dad.but..

Registered User
Jan 16, 2014
4,962
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Kent
I too sold dad's house as his attorney and had no such problems. Copy of LPA given to my solicitor at the beginning of the process and everything accepted without question. If it is the buyer's solicitor rather than land registry insisting perhaps your solicitor can remind them of the legality of the LPA and your authority as attorney to act as though you are your mum which is sufficient.
 
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jenniferpa

Registered User
Jun 27, 2006
39,442
0
In fact, many people who live overseas leave a LPA with a family member to act for them when they may not be in the country: an LPA then acts like a general power of attorney. I think I would call the COP about this.
 

Amethyst59

Registered User
Jul 3, 2017
5,776
0
Kent
I’ve only just sold my husband’s house, using a registered LPA, and I had no problem at all. It was our solicitor who needed to be satisfied...not land registry. I, too, wonder if the query has come from someone else.
 

nitram

Registered User
Apr 6, 2011
30,081
0
Bury
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Fullticket

Registered User
Apr 19, 2016
486
0
Chard, Somerset
POA registered with one solicitor and when it came to selling mum's house it was handled by a completely different solicitor. No problems arose with any party, least of all the Land Registry who, I would have thought, would take the 'word' of the solicitor. Nitram posted as I started to type this - I would go to the Land Registry website and ask an innocent and factual question as a first step.
 

Bod

Registered User
Aug 30, 2013
1,958
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My understanding of the LPA for finance is that "Capacity" is not an issue. It can be used freely if the Donor agrees.
Health and Welfare, is very different, that does need a lack of "Capacity" it be confirmed before use.

Bod
 

Rosettastone57

Registered User
Oct 27, 2016
1,839
0
I sold my aunt's house in August 2017 and there was no problem. Perhaps your solicitor should confirm that this is actually coming from the Land Registry and not from someone in the chain who's being over careful.

I am currently selling MIL house under POA and as others have said no one has queried this at all.
 

try again

Registered User
Jun 21, 2018
1,308
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My understanding of the LPA for finance is that "Capacity" is not an issue. It can be used freely if the Donor agrees.
Health and Welfare, is very different, that does need a lack of "Capacity" it be confirmed before use.

Bod
there is an option on the LPA to either have immediate control or only take control when there is no longer capacity
 

canary

Registered User
Feb 25, 2014
25,018
0
South coast
Im thinking that there is a clause in the POA that says that it can only be used once capacity has been lost.
The most expedient thing might just be to pay for an Independent Mental Capacity Advisor (IMCA) to come and do an assessment as they're professionally qualified to do one but your mum will have to pay,
I must say that if there is a clause stating that it can only be used once capacity has been lost, then this will be the way to go.
 

try again

Registered User
Jun 21, 2018
1,308
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Im thinking that there is a clause in the POA that says that it can only be used once capacity has been lost.

I must say that if there is a clause stating that it can only be used once capacity has been lost, then this will be the way to go.
The problem is if you go for the ' when capacity has been lost ' option is you then have to prove it at a later date!
 

Baz22

Registered User
Dec 30, 2017
46
0
South West
The problem is if you go for the ' when capacity has been lost ' option is you then have to prove it at a later date!
My Mum moved into a Care Home in June and I am in the process of selling her house to fund her care.
We are now almost 3 months into the conveyancing process and despite having LPA over Mum's finances and property, it appears that's no longer enough to satisfy the Land Registry.

According to the Buyer's Solicitor, they are insisting on a letter from Mum's GP, confirming she doesn't have the mental capacity to represent herself. I thought that was the whole point of LPA. Has anyone else experienced this?

Obtaining such a letter is proving to be very difficult, because, when Mum moved into the CH, she had to change her GP and the new GP (who has only met her once, very briefly) is refusing to write the letter until my Mum undergoes a full Psychiatric Assessment, (in other words, a second diagnosis), a process that took 9 months last time.

My Mum was diagnosed with Alzheimer's in August 2016, by which time she was well into the mid stages.
She certainly hasn't improved in the last 2 years and can no longer sign her own name, or remember what she was told 2 minutes ago.
I tried explaining to her new GP that, if my Mum had sufficient mental capacity to be selling her own home, she'd still be living in it... she wouldn't need full time residential care and I wouldn't need to be acting as her Attorney.

I'm not sure how much more of this I can take... how many more hoops will I be made to jump through to protect my Mum and keep her safe... I'm hanging on by a thread...

Can see this from all sides and @Kevinl & @tryagain seem to be offering the best explanation. It is not uncommon for a clause to be inserted to protect against using the POA before capacity is lost. The Land Registry and the GP are therefore right to be protective particularly as it is a new GP. If you moved Mum into a care home has there been a deprivation of Liberty order? Could be right & proper that you have to show lost capacity but that said it does not need to take 9 months; talk with your GP about the need for urgency. I would also involve social services because if you are selling the house to self fund care they may be able to help in the interim. If you are selling the house but not using the money to fund care the Financial & Benefits assessment people will take a keen interest.
 

love.dad.but..

Registered User
Jan 16, 2014
4,962
0
Kent
Can see this from all sides and @Kevinl & @tryagain seem to be offering the best explanation. It is not uncommon for a clause to be inserted to protect against using the POA before capacity is lost. The Land Registry and the GP are therefore right to be protective particularly as it is a new GP. If you moved Mum into a care home has there been a deprivation of Liberty order? Could be right & proper that you have to show lost capacity but that said it does not need to take 9 months; talk with your GP about the need for urgency. I would also involve social services because if you are selling the house to self fund care they may be able to help in the interim. If you are selling the house but not using the money to fund care the Financial & Benefits assessment people will take a keen interest.
However if the donor placed no restrictions or specific instructions on the LPA in this respect then surely the buyer's solicitor or land registry if indeed it is them should accept the legal authority of the attorney to process the sale for the benefit of the donor ie to pay care home fees as in my case with dad's house sale and others who have posted.
 

canary

Registered User
Feb 25, 2014
25,018
0
South coast
However if the donor placed no restrictions or specific instructions on the LPA in this respect then surely the buyer's solicitor or land registry if indeed it is them should accept the legal authority of the attorney to process the sale for the benefit of the donor ie to pay care home fees as in my case with dad's house sale and others who have posted.
Absolutely, which is why I and others think that there is probably a clause stating that the POA can only be used once capacity has been lost.
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
I think until @Shari12 comes back and confirms or denies that there is such a clause in the LPA, we are now just engaging in speculation.
 

jen54

Registered User
May 20, 2014
240
0
I am having this now.. The sale went through OK, both sets of solicitors acknowledged the lpa isn't one dependant on mental incapacity the registry accepted changes to registry by solicitor under my instruction and my lpa
The house completed .
Now the buyer cannot register it u der his name... As suddenly within last few weeks registry have changed their stance and want evidence of mental incapacity of my mum, or for the sicitor to go into the Carehome to see mum.
In the process of trying to get a letter from the Carehome or gp.. But they aren't keen on saying people have no mental capacity . Mum has dementia
This was why we got lpa which had no clause about mental capacity.. Because she needed help way before they would say she had lost mental capacity.
Madness, I know she was assessed on hospital discharge as ss deemed she could not live alone and said she lacked enough mental capacity to cope at home and helped finding a carehome.
Getting hold of anyone is a nightmare . I asked carehone last week and they said they had to ask mum questions and go through formalities to do letter for me.. Still waiting
 

Jessbow

Registered User
Mar 1, 2013
5,679
0
Midlands
I am having this now.. The sale went through OK, both sets of solicitors acknowledged the lpa isn't one dependant on mental incapacity the registry accepted changes to registry by solicitor under my instruction and my lpa
The house completed .
Now the buyer cannot register it u der his name... As suddenly within last few weeks registry have changed their stance and want evidence of mental incapacity of my mum, or for the sicitor to go into the Carehome to see mum.
In the process of trying to get a letter from the Carehome or gp.. But they aren't keen on saying people have no mental capacity . Mum has dementia
This was why we got lpa which had no clause about mental capacity.. Because she needed help way before they would say she had lost mental capacity.
Madness, I know she was assessed on hospital discharge as ss deemed she could not live alone and said she lacked enough mental capacity to cope at home and helped finding a carehome.
Getting hold of anyone is a nightmare . I asked carehone last week and they said they had to ask mum questions and go through formalities to do letter for me.. Still waiting

Once the sale is complete , why is why the new owner can or cant do any of your worry? I dont understand that
 

jen54

Registered User
May 20, 2014
240
0
Once the sale is complete , why is why the new owner can or cant do any of your worry? I dont understand that

I know, lol. The solicitor said it was the buyer's issue..and she was just trying to help, under no obligation, But I feel that if he can't register due to paperwork not supplied by the seller.. me..i Could be in breach of something, or guilty of not supplying something
Solicitor said it was buyers problem and it was good of me to help after all the time that has passed . As sale completed, he has the deeds and my mum has the money,
 
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