LPA with my brother

[Technojunkie]

My brother and I are named as “Attorneys” on an LPA on behalf of my mother for Property and Financial Affairs. I am currently in a dispute with my brother over the potential sale of my mother’s house and so have checked the LPA to see if states the LPA is jointly, jointly and severally, or jointly for some decisions and jointly and severally for others. The problem is, none of these words are used on the LPA 004 registration document or in any of the other documents accompanying the LPA. Therefore how do I know if decisions have to be made jointly between my brother and I or if we can make decisions independently with regards to my mums financial affairs ?

Any helpful advice would be much appreciated.

 

[Shedrech]

hello @Technojunkie
and welcome to DTP

you can contact the OPG to check on the LPA ... a phone call may take a wait in the queue, but I have found the operators helpful and understanding ... e-mail will take a few working days, but means you have the info in 'black and white'

you may not want to mention any disputes between the Attorneys, just keep it to a factual question

whatever your disagreement may be, try to see both sides and not fall out if possible ... I know how tricky that can then become

 

[Technojunkie]

hello @Technojunkie
and welcome to DTP

you can contact the OPG to check on the LPA ... a phone call may take a wait in the queue, but I have found the operators helpful and understanding ... e-mail will take a few working days, but means you have the info in 'black and white'

you may not want to mention any disputes between the Attorneys, just keep it to a factual question

whatever your disagreement may be, try to see both sides and not fall out if possible ... I know how tricky that can then become

Thank you for the prompt response Shedrech and your advice, I’ll give the OPG a call on Monday. I’m afraid that not falling out with my brother may not be an option.

My brother rents a house that the landlord now wants to sell. My brother wants to buy it but can only get a mortgage for 40% of the houses value. His idea is that my mum should sell her house, therefore releasing sufficient capital to allow him to buy his house, and my mum would go and live with my brother and his wife as, although she currently lives independently, she will need care in the future as her dementia gets worse. He has already put my mums house on the market and an offer has been accepted. My mother agree with this plan initially but has changed her mind and does not now want to move. She is more than happy where she is and I think she should be left in her home to live independently for as long as possible and then, when care is needed, we will arrange it accordingly. My brother has until the end of December before the landlord put the house on the market and my brother will have to either buy it or move out. I originally agreed with the plan to sell as this is what my mum wanted but she has now changed her mind As she has friends nearby, memories and with dementia, moving someone out of there familiar environment can/will be detrimental mentally and physically. I’m in total agreement that my mum should now stay where she is but my brother isn’t and his attitude is that this is what is going to happen wether I like it or not. This is why I need to check the LPA but I also think that he is not working in my mums best interests. It’s a bit of a mess really.

 

[nitram]

Have a look at LPA1 - the actual power.
Specifically section 3
https://assets.publishing.service.g...d-register-your-lasting-power-of-attorney.pdf

Above is current form, if yours is older info might be somewhere else. on my LPA written in 2007 it is on page 5

The facility to have some action join and others joint and several was introduced when EPAs were changed to LPAs so it's going to be somewhere on the LPA, there have been many revisions

 

[nitram]

His idea is that my mum should sell her house, therefore releasing sufficient capital to allow him to buy his house,

<my bold>


The capital released on sale will go into your mum's bank account, how is this going to help him buy his house?
As an attorney you have a duty to stop this proposed action.

 

[northumbrian_k]

You may wish to seek advice from the Office of the Public Guardian (OPG).

Attorneys have a duty to act in the Donor's (in this case your Mum's) best interests. Based on what you have said, what your brother is proposing seems to go against this and may fall into the category of abuse as defined by OPG:

"Abuse of property and financial affairs attorneyships can include:

• theft or fraud
• undue pressure upon the donor to make a financial decision
• misuse of property, possessions or benefits"

 

[Louise7]

It sounds like you have an older version of the LPA, so I don't know if this applies, but on my Mum's financial LPA it specifies whether the attorneys can act prior to loss of mental capacity - with the donors consent - or only when the donor has lost mental capacity. It's not clear whether your Mum is deemed to have mental capacity or not but it may be worth checking what the LPA says about that in addition to whether it is joint/several. If she still has mental capacity then your brother wouldn't be able to act as attorney and sell the house unless your Mum gave him her consent to do so. If an offer has already been accepted on her house then you need to move quickly so definitely speak to the OPG on Monday.

 

[Technojunkie]

Thank you for the posts of advice.

Thank you for your response Nitram. We don’t have an LPA1 or any other document apart from the LPA 004 ! My brother has a mortgage offer for 40% of the house wants my mother to buy the remaining 60% making them joint owners.

Thank you Northumbrian_k, I will be calling the OPG tomorrow for clarification of the LPA that it is in place and for advice on if my brothers actions are lawful.

Thank you Louise7. The LPA we have gives no information on when and how we can act. My mum still has mental capacity and lives independently on her own. However, her short term memory is very poor, frequently asking the same questions minutes after they have been answered. Six weeks ago my mother wrote me a letter clearly stating that she did not want to move to my brothers. I showed this letter to my brother and he got very angry. Less than a week later, he emailed me a copy of a letter written and signed by my mother stating that she wanted to sell the house and to accept the best offer. When I asked my mother about the letter she got very emotional and distressed saying that she didn’t remember writing it and why on earth would she want to sell the house. I live in North England and my mother lives in the South of England. I have been staying with her for the past three days and she is fraught and distressed by this situation regarding the house. She is vehement that she doesn’t want to move to my brothers but also feels duty bound to help my brother to save him having to move to another house. My brother has been staying with my mum three nights a week (it’s convenient for his work) for a couple of years now so he’s also been able to keep an eye on her and help out when needed. He has now told her that he will stop staying with her in future if mum stays in the house which is basically emotional blackmail. My brother has been abroad for the past two weeks so I have used the opportunity to spend some time alone with my mum to clarify why it is she really wants to do. She is emphatic that she doesn’t want to sell the house and I am in total agreement as it will be totally detrimental to her mental and physical well being. Someone just needs to persuade my brother other wise !

 

[nitram]

The LPA004 is a Notice of Registration sent by the OPG
It is sent with the registered LPA to the person who submitted the LPA for registration.
Copies are also sent to 'people to be told' if any were entered on the application, it has never been necessary to have any 'people to be told' .

The person who applied for registration should have the LPA, it can be the donor, an attorney, or a solicitor.

You could use
https://assets.publishing.service.g...meone-has-a-registered-attorney-or-deputy.pdf
to ask in section 4 who registered the LPA and see if they tell you.
You can email or post the form

 

[sausagedog]

Hi
I hope that you’ve been able to get some help from the OPG re: your brothers’ actions - let us know how things go. It’s terribly upsetting when a family member can abuse their position of trust for their own personal gain - such a worry not only for your dear mum but for you as well ....nothing surprises me with ‘family’, my SIL attempted to move her mother into a different Care Home without telling her 2 brothers and one just wonders what planet she was on at the time and why? Anyway hope you are able to sort things

 

[MaNaAk]

I wonder if your brother has seriously thought about how he and his wife are going to cope when your gets worse.

MaNaAk

 

[Technojunkie]

Hi
I hope that you’ve been able to get some help from the OPG re: your brothers’ actions - let us know how things go. It’s terribly upsetting when a family member can abuse their position of trust for their own personal gain - such a worry not only for your dear mum but for you as well ....nothing surprises me with ‘family’, my SIL attempted to move her mother into a different Care Home without telling her 2 brothers and one just wonders what planet she was on at the time and why? Anyway hope you are able to sort things

I spoke to the OPG yesterday and explained the situation but they said that there was nothing they could do unless my mum had been diagnosed as having insufficient mental capacity to make a decision in her own right. The fact that, under pressure from my brother, she tells him that she wants to sell her house and move in with him but then tells me the total opposite when I see or talk to her is a problem. I have therefore arranged a Mental Capacity test at the doctors the week after next. I have also found out from the OPG that the LFA in place is Jointly & Several which could be a problem !

 

[Technojunkie]

I wonder if your brother has seriously thought about how he and his wife are going to cope when your gets worse.

MaNaAk

They have said that they would get care in as and when necessary. Something that could easily be put in place in the comfort of her own where she is happy and has memories of my late father. My brother and his wife’s sole purpose is to ensure that they can stay in the big house they can not afford to buy.

 

[Dimpsy]

Many, many, many years ago, I had two boyfriends (those were the days!).
When I was with reliable A, I wanted to be with A, when I was with new boy on the block, racy B, I wanted to be with B, and it was impossible to choose, I cared for them both.

From an outsider's point of view, your mum is in the same position and it brings to mind the story of Solomon's Judgement, your mum loves you and your brother; don't tear her in half.

Organising the mental capacity test is a very positive move from you, it shows you are putting your mum's medical condition to the front and taking the pressure to choose sides away off mum.
With a formal diagnosis, you and your brother can work together with mum's best interests at heart.

I'm really sorry if what I have written offends you, families structures are complicated beast's, but what does shine through is what a caring daughter you are, your brother will have to open his eyes and plan for mum's future which ultimately could affect his plan's.

Your mums care outweighs everything; stay strong and ride the storm of your brother's wrath.

 

[nitram]

I have therefore arranged a Mental Capacity test at the doctors

Mental capacity is the capacity to make a specific decision at a specific time.
The GP may well refuse to make a definitive statement and suggest a referral.

The acid test for her capacity to decide on the house sale is a COP3 https://www.gov.uk/government/publi...someones-capacity-to-make-decisions-form-cop3

They have said that they would get care in as and when necessary.

And if she is ultimately assessed as requiring residential care with LA financial assistance the LA will require the house to be sold to liquidate her share.
Assumes nobody living in the house is under 18, over 60, or disabled.

 

[MaNaAk]

Dear Techno,

I just want to say that I agree with Dimpsy. Stay strong and try reading some of my threads to see what I've had to put with.

We carers have an extra special strength.

Good luck

MaNaAk