Charge on property and no LPA

Discussion in 'Legal and financial issues' started by Serendipity1934, Jul 1, 2015.

  1. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    Hello everyone,

    My question is -

    Can a local aurhority put a charge on my Dads property for care fees ( who is in a care home and lacks capacity) without any LPA ? My sister authorised it, and I as his daughter was not informed, and neither did the council inform the land registry of my mothers death.

    Thanks


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  2. canary

    canary Registered User

    Feb 25, 2014
    9,331
    Female
    South coast
    Im afraid that I dont know about the land registry bit and what difference that makes, but AFAIK if the property belongs to your dad then yes, the property is taken into consideration for care home fees.
    This has happened with mum who owns a bungalow, but no-one had PoA as she had refused to do it and then lost capacity. I have had to apply to Court of Protection to be made the deputy so that I could then sell her bungalow.
     
  3. nitram

    nitram Registered User

    Apr 6, 2011
    18,296
    Male
    North Manchester
    "Can a local aurhority put a charge on my Dads property for care fees ( who is in a care home and lacks capacity) without any LPA ?"

    Yes,they are simply recording the fact that when the property is sold they are entitled to some of the proceeds.

    "... and neither did the council inform the land registry of my mothers death."

    There is no reason for them to do this. They just wait until a somebody registers a change of ownership when the existence of the charge will be noticed.
     
  4. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    Thanks for the replies..I was nt sure.. So that has clarified for me.


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  5. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    #5 Pete R, Jul 1, 2015
    Last edited: Jul 1, 2015
    I am going to disagree with the previous comments and say No.

    Your Dad is effectively entering into a loan agreement which is quite complicated and can have financial implications. There can be charges involved and interest to pay. They are not suitable for everyone and independent financial advice should be sought before entering into one.

    However with no capacity and no LPA your Dad cannot enter into any legal agreement.

    Sec 9 of the Guidance on The New Care Act covers deferred payments agreements.
    https://www.gov.uk/government/uploa.../file/366104/43380_23902777_Care_Act_Book.pdf

    "9.18.
    As a deferred payment agreement can take some time to set up and agree, it is important that both the local authority and the individual consider any potential issues around loss of capacity. If, at the point a person applies for a deferred payment agreement, a local authority has concerns that a person either lacks or will soon come to lack capacity, the local authority may offer to provide the person with information and advice on options for deputyship, legal power of attorney and advocacy. If a local authority and the person do discuss the issue, the local authority should confirm what would happen were the person to lose capacity and not have made their own arrangements."



    "9.63.
    Local authorities must ensure at a minimum that people sign or clearly and verifiably affirm they have received adequate information on options for paying for their care, that they understand how the DPA works and understand the agreement they are entering into; and that they have had the opportunity to ask questions about the contract."


    With your Dad lacking capacity and no PoA the above would not be legal.


    I am going through the process of deferred payments now for my Mom's house. It was made clear in the first letter from the LA that this could not be done without PoA.
     
  6. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    Not sure why you think the LA should inform the land registry:confused: but if no one has and she was joint owner of the property then even with capacity or PoA the Deferred Payment Agreement could not go ahead as all joint owners have to agree and sign.
     
  7. nitram

    nitram Registered User

    Apr 6, 2011
    18,296
    Male
    North Manchester
    I take your point, but if the charge was put on the property before the Care Act I'm not sure if the procedure was as rigorous.
     
  8. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    But surely under CRAG the LA could not just put a charge on someone property without some kind of legal document being signed by the owner or PoA?
     
  9. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    Thanks Pete , thats been really helpful. The la were aware that there was no Lpa or deputy. ( there has since been one appointed in COP) They communicated with my sister about it, who authorised it without LPA, and as You say ( and 9.24 in the link ) they must not have informed my sister or advised her this is needed, as she has gone ahead and approved the deffered payment, and the charge on my fathers property as security for the loan through the land registry.




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  10. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    Hello Again,

    Nitram - The charge was put on the property in Jan of this year. I believe the care act was put in place May 2014 ?

    9.24 states that they have to advise family members to get deputyship or POA , and that all proper arrangements are in place or else they cannot proceed with organising the deferred payment scheme.

    In a letter to my sister in Jan, they make no mention of this.



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  11. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    #11 Pete R, Jul 1, 2015
    Last edited: Jul 1, 2015
    If the deputy has now agreed it then there is no real problem.

    The LA could have accepted liability for the deferred payment till the CoP was sorted but they still could not have applied to the land registry beforehand.

    Deferred Payment Agreement is a good option for some. It can get a tad complicated if some family members would rather "top up" and some do not. The other alternative is to sell the property but once that is done there is no going back.

    Is your sister now the deputy?

    Do you have any objection to it in itself or just the way it was done?
     
  12. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    #12 Pete R, Jul 1, 2015
    Last edited: Jul 1, 2015
    The New Care Act is dated 2014 but did not come into force till April this year, 2015.

    The old guidelines, CRAG sec 7.024 cover deferred payments but not in as much details as the The New Care Act. However I cannot see how it is legally possible to put a "charge" on a property without the consent of the owner or possibly a court order.
    https://www.google.co.uk/url?sa=t&r...U3X-lHhelejjBbA&bvm=bv.96952980,d.ZGU&cad=rjt
     
  13. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    My sister is not the deputy. She applied for deputyship, but the judge decided to appoint a panel deputy, as the issues involved with his property are complex , and my sister had mis managed his monies generally. She had mixed up the accounts of my mother ( deceased) and father, not declared tenants living in the property , or in the financial assessment to the LA or in regards to council tax.

    And also went ahead and authorised the charge with the land registry requested by the local Authority.

    It is a pity that I cannot avail of the Care act in this instance, as the section in CRAG does not state anything about LPA and land registry charges.

    I agree that surely this is not legal, but where is the Act, guidance or law that states this ?


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  14. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    I do not feel it is the responsibility of the Care Act past or present to state what is lawful in these circumstances.
    Other statute would cover it.

    If you want to pursue this, you are not obliged to tell why on here but I fail to see your end goal, then pop along to the land registry web site and first of all do a search (costs a few quid) to confirm if/when it happened. Then approach them.

    I hope that helps.:)
     
  15. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    My objection is that between my Sister and the LA they have not acted in the bests interests of my father.

    He was placed in a home last year, and the LA communicated with my sister as to where he should be placed. I had a brief call with the social worker and she told me where my father was being placed. They never told me which home , and i was never given the opportunity to visit it or see if it would suit my Dad.

    They acted in this way on the basis of a vague and unclear conversation with my mother a week before she died who told the social worker , when prompted more than once and helped by my sister, where my father should live. She was on a high dose of morphine and replied 'i dont know' 'in the countryside' 'whatever is convenient'
    I requested details of the conversation months ago, but they have only just now come to light in cop paperwork.

    To cut a very long story short, my sister and myself were not in communication. However LA knew of my existence. They have been dealing with my sister on an 'informal' basis in regards to finances. When i visited the home he was placed in, i discovered it was horrendous and completely unsuited to my Dads needs. I highlighted this consistently to the LA.Two best interests reports were done saying that he needed to be moved and made recommendations and a Dols order was given in both instances.

    My sister disagreed with moving him, on no other grounds other than convenience to where she lived. She also opposed the recommendation that he be of equal distance from both daughters.She has since ended her opposition in this regard.

    The LA continued to search in the area where my sister lived, and I requested that the search area be widened.

    Sadly, my fathers mental state deteriorated , due to being in an overly institutionalised environment where he was isolated, and did not have any mental stimulation.

    The LA could not find a home that would accept him, because of his 'challenging behaviour', and he was prejudiced against through no fault of his own, only the unsuitability of the home and the staff who could not see to his needs effectively.

    The homes my sister suggested were still not suited to him, and the cheapest available. My father owns a property of considerable value.

    A home I suggested has since been found who are willing to accept him. And my sister agrees with this home too.

    However, before this, the LA have now applied to COP for a Dols ( it having expired at his present home in April ) They told me about this. What they did not tell me is that they are also applying for an order for where he should live and the care and treatment he should receive. My dad does nt even have his panel deputy in place yet. The official solicitor has not accepted representation, as he does nt know finances. A hearing is taking place in a week and directions have been made for all parties to have an A4 side of paper detailing issues to be decided.

    It is my concern that they are applying for essentially welfare deputyship and possibly to force a placement in a home of their choice.


    They have not followed the correct proceedures in any of this, and my poor father has suffered. It is a situation that could have been avoided had they properly consulted me..

    Not a short story after all...

    So, apart from their illegal behaviour, any suggestions on what points I should address the court with would be gratefully appreciated..








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  16. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    I would suggest you seek proper legal advice, as is the norm on here when it gets complicated.

    However since you did ask....:)

    First forget about the DOLS. Everyone who lacks capacity and whose movements are restricted in a CH have to have one. The CH have to apply for one and then you (well I did) get a very official letter from the LA scaring the life out of you.:eek: My Mom has one and I feel it is nothing to worry about. There has been many a recent thread on here.
    http://www.google.co.uk/url?sa=t&rc...1PqzPKck7HZJjhw&bvm=bv.96952980,d.ZGU&cad=rjt

    Second forget about the deferred payment scheme and the charge on the house. If it did happen it was wrong but has any one lost out by it? If it was started last year under the old system there were no charges nor interest payments. Your Dad would have had to pay somehow.

    Thirdly, which may be the most difficult, it would be in my case as I do not get along with my sister at all. If it wasn't for Mom I would never have anything to do with her.

    Your statement here.......
    ................... should be only thing on both you and your sister piece of A4 apart from agreeing to let the Court appointed Deputy do their job.

    Some common ground between you and you sister may not repair the relationship but it just might be enough for the LA to back off a bit.

    I do hope your Dad gets the care he deserves and you obviously want for him.:)
     
  17. Serendipity1934

    Serendipity1934 Registered User

    Apr 19, 2015
    10
    Thanks again Pete.

    I hopeso too. It has really been heartbreaking and stressfull the last 10 mths.

    I just dont want a bunch of strangers in an office making welfare decisions for my dad when his family should be ( allbeit one has made a complete mess of it )

    I guess I feel annoyed on my Dads behalf more than anything and dont want him taken advantage of in anyway.

    But the points you make are the voice of reason I think.



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  18. Pete R

    Pete R Registered User

    Jul 26, 2014
    2,046
    Staffs
    I am sure it has. I hope it gets less so. The battles with relatives can be the hardest.

    If you can get your Dad into the home of your choice and the court appointed deputy can sort out the finances (it is what they get paid for) then you can maybe have more time to make sure your Dad is well cared for. The deputies are accountable and need to be reminded of that.

    It is your choice to put off the other battles but there is nothing stopping you returning to them in the future if you feel the need.

    Please keep posting any progress (or not).;)
     
  19. vernumamy

    vernumamy Registered User

    Jan 25, 2014
    71
    Challenging Behaviour


    because of his 'challenging behaviour', and he was prejudiced



    If your father has challenging behaviour, has he had a CHC assessment done, if not you need to arrange one.

    Regards,:)
     

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