Hi All,
Have been dealing as Power of Attorney along side my sister since mum was decreed to lack capacity and was moved into a care home as per my thread on another forum. However it is all turning into a bit of a financial nightmare and don't know where to turn without being charged to the hilt by solicitors!
My mother is extremely comfortable financially and pays for her care with her income. Within that income mum has since 2011 and after advice from her financial advisors due to inheritance planning given my sister and I a sizeable amount of money every three months throughout the year, which is somewhat fortunate considering I couldn't work for two years due to illness and I was made redundant not long ago.. Even since she went into care the financial advisor at a meeting we had with him told us to continue with these payments because they are long term and mum wanted to do this continuously and even with these payments she can pay her care fees without a shortfall in her income due to two pensions and two sizeable investments.
After forwarding Power of Attorney to all of mums utilities and investments I received an email back from an investment firm suggesting that was very little we can do with power of attorney and as mum lacks capacity we would have to remove her as a trustee and the only way we can do that is via a deed from a solicitor through The Court of Protection. I said that we don't want to make any changes because mum is the beneficiary and she is benefitting from her investments so IMO nothing needs to change but the solicitor in a nutshell is saying that to save problems at a later date (I assume she means when mum eventually passes) this needs to be done.
In the phone call I had with the solicitor I also asked her if it was possible for me to take out a correctly written up loan from mum's finances because at my latest car service I was told I need brakes, a clutch and tyres!! Gulp!! Mum would always help out with things like this but she now lacks capacity and even though my sister was happy with my idea and the fact that any "gifting" is for the donors benefit (me having a car is obviously helpful so I can visit mum and take care of her affairs) the solicitor said I couldn't do this but could gift £3000 half to me, and half to my sister as part of the annual gifting laws. Being a tad worried and uncomfortable at this point I then double checked what the financial advisor had said about the payments mum makes to us every three months. The solicitor basically said the FA had got it wrong and whilst she felt the court would agree to the payments continuing due to being long term since 2011 she said we would have to go through the Court of Protection to verify it legally.
Today I received a quote for what the solicitors would charge, this is what I received -
"Following on from xxx e-mail below, xxx has asked me to explain to you the costs implications of a Court of Protection application to seek authority to make gifts on your mother’s behalf.
As you will be aware, we charge on a time costing basis, but we usually find that our fees relating to a straightforward application are in the region of £3500 + VAT, assuming no hearing is required. There is also an application fee payable to the Court of £385. We would usually seek authority in the application for our costs to be agreed by you as Attorneys, but if agreement could not be reached, then our costs would be assessed by the Court. We therefore charge for our time using the Court of Protection’s prescribed charge out rates, which are less than our private rates.
The process is that we would prepare the necessary forms for your signature, as Attorneys, and these would then be submitted to the Court with the application fee. The Court would then issue the application (usually within a couple of weeks) and then notices of the application would need to be sent by post to at least three appropriate people (not including yourselves) and your mother would need to be personally served (even if she doesn’t have much understanding). This is to give her the opportunity to object to the application, if she had sufficient capacity to do so.
Once all relevant parties had been served, the Court would then consider the application and either make an Order, or seek further information/give further Directions in a Directions Order. The process usually takes approximately 3-6 months, depending upon the backlog at the Court.
I should have all the information I will need to enable me to complete the relevant forms from Caroline’s file, but if there is any outstanding information I require, I will seek this from you.
look forward to hearing from you, should you wish to proceed."
So on the one hand we are not allowed to continue the payments that mum wanted to continue but it's fine for me to write a cheque for 4 grand out of mums money to the solicitor and COP!!! And this quote doesn't even include the estimate for the COP Application to remove mum as a trustee from her investments and we have no idea if this really is necessary!!?!?!?!?
Without going to another solicitor who will probably charge to quote a quote I am stumped at what I should do and would really appreciate some advice. Poor mum would be absolutely mortified.
Have been dealing as Power of Attorney along side my sister since mum was decreed to lack capacity and was moved into a care home as per my thread on another forum. However it is all turning into a bit of a financial nightmare and don't know where to turn without being charged to the hilt by solicitors!
My mother is extremely comfortable financially and pays for her care with her income. Within that income mum has since 2011 and after advice from her financial advisors due to inheritance planning given my sister and I a sizeable amount of money every three months throughout the year, which is somewhat fortunate considering I couldn't work for two years due to illness and I was made redundant not long ago.. Even since she went into care the financial advisor at a meeting we had with him told us to continue with these payments because they are long term and mum wanted to do this continuously and even with these payments she can pay her care fees without a shortfall in her income due to two pensions and two sizeable investments.
After forwarding Power of Attorney to all of mums utilities and investments I received an email back from an investment firm suggesting that was very little we can do with power of attorney and as mum lacks capacity we would have to remove her as a trustee and the only way we can do that is via a deed from a solicitor through The Court of Protection. I said that we don't want to make any changes because mum is the beneficiary and she is benefitting from her investments so IMO nothing needs to change but the solicitor in a nutshell is saying that to save problems at a later date (I assume she means when mum eventually passes) this needs to be done.
In the phone call I had with the solicitor I also asked her if it was possible for me to take out a correctly written up loan from mum's finances because at my latest car service I was told I need brakes, a clutch and tyres!! Gulp!! Mum would always help out with things like this but she now lacks capacity and even though my sister was happy with my idea and the fact that any "gifting" is for the donors benefit (me having a car is obviously helpful so I can visit mum and take care of her affairs) the solicitor said I couldn't do this but could gift £3000 half to me, and half to my sister as part of the annual gifting laws. Being a tad worried and uncomfortable at this point I then double checked what the financial advisor had said about the payments mum makes to us every three months. The solicitor basically said the FA had got it wrong and whilst she felt the court would agree to the payments continuing due to being long term since 2011 she said we would have to go through the Court of Protection to verify it legally.
Today I received a quote for what the solicitors would charge, this is what I received -
"Following on from xxx e-mail below, xxx has asked me to explain to you the costs implications of a Court of Protection application to seek authority to make gifts on your mother’s behalf.
As you will be aware, we charge on a time costing basis, but we usually find that our fees relating to a straightforward application are in the region of £3500 + VAT, assuming no hearing is required. There is also an application fee payable to the Court of £385. We would usually seek authority in the application for our costs to be agreed by you as Attorneys, but if agreement could not be reached, then our costs would be assessed by the Court. We therefore charge for our time using the Court of Protection’s prescribed charge out rates, which are less than our private rates.
The process is that we would prepare the necessary forms for your signature, as Attorneys, and these would then be submitted to the Court with the application fee. The Court would then issue the application (usually within a couple of weeks) and then notices of the application would need to be sent by post to at least three appropriate people (not including yourselves) and your mother would need to be personally served (even if she doesn’t have much understanding). This is to give her the opportunity to object to the application, if she had sufficient capacity to do so.
Once all relevant parties had been served, the Court would then consider the application and either make an Order, or seek further information/give further Directions in a Directions Order. The process usually takes approximately 3-6 months, depending upon the backlog at the Court.
I should have all the information I will need to enable me to complete the relevant forms from Caroline’s file, but if there is any outstanding information I require, I will seek this from you.
look forward to hearing from you, should you wish to proceed."
So on the one hand we are not allowed to continue the payments that mum wanted to continue but it's fine for me to write a cheque for 4 grand out of mums money to the solicitor and COP!!! And this quote doesn't even include the estimate for the COP Application to remove mum as a trustee from her investments and we have no idea if this really is necessary!!?!?!?!?
Without going to another solicitor who will probably charge to quote a quote I am stumped at what I should do and would really appreciate some advice. Poor mum would be absolutely mortified.
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