1. Expert Q&A: Benefits - Weds 23 October, 3-4pm

    Our next expert Q&A will be on the topic of benefits. It will be hosted by Lauren from our Knowledge Services team. She'll be answering your questions on Wednesday 23 October between 3-4pm.

    You can either post your question >here< or email them to us at talkingpoint@alzheimers.org.uk and we'll be happy to ask them on your behalf.

CoP rules... confusion and making an ex carer homeless??

Discussion in 'Legal and financial issues' started by Argon, Mar 8, 2015.

  1. Argon

    Argon Registered User

    Mar 8, 2015
    16
    #1 Argon, Mar 8, 2015
    Last edited: Mar 8, 2015
    really just looking for some advice regarding CoP rules etc...

    In November 2013 a family member with alzheimers suffered a fall in her home (after a uti) and broke her shoulder. As a result and due to her dementia her carer of 5 yrs or so (granddaughter) was no longer able to look after her as she couldnt even manage to get her out of the chair. The social services/hospital etc were useless helping but the short of it was she was then moved into a residential care home and now permanently lives there. Her grandaughter was previously living with her and continued to live in her home while she was in care. Afterwards the two daughters of the alzheimers sufferer got joint power of attourney over all of her affairs and property. She had savings so was paying for the care home but they have asked a charge to be put on the property to continue paying care fees and allow the grandaughter to stay in the house.

    Recently one of the daughters has spoken to a solicitor and is claiming that the grandaughter will now have to start paying rent on the property to live there (she is paying bills council tax etc etc) and that the Court of Protection will hold the two deputies liable for not "acting in (alzheimer sufferers) best interest" or "making the most of her assets" if they do not. The grandaughter is on a very low income (and she is 8 months pregnant & working self employed full time) and has no concievable way of affording rent so if this came into force she would have to try claiming housing benifit to cover this (if she even could as there seems to be some issues re renting from relatives) or be made homeless

    Part of the issue is nobody seems able to find anything stating that they would be forced to rent out the property in the CoP rules and it seems to state that the personal views of her grandmother would be key in decisions. The grandmother would NEVER ever have asked rent nor tried to make her grandaughter move and expressed her wish when still healthy that she wanted her living there (even to the extent of offering to transfer the property to the grandaughter who refused feeling it was unfair to the daughters) and that she expressly wanted the home to stay in the family. The grandaughter is also the only one who has expressed interest in trying to purchase the property in the future if her financial situation was more favourable...

    Sorry for confusingness... trying to hide names and identities etc!

    But really confused as to where they stand here?
     
  2. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661
    You seem to be confusing quite a lot of different concepts here. The wishes of the grandmother (Alzheimer's sufferer - I'll call her GM for simplicity here) are not the ultimate determining factor here.

    The Power of Attorney holders (PoA) are obliged to act in the "best interests" of GM. Her desire to keep the property in the family is all but irrelevant here: the home is an asset and must be used as such. The PoA holder's duties in the eyes of the alw are similar to those of a Trustee (it is sometomes called an "analogous fiduciary duty" = like a trustee's duty for that reason.) This means they must deal with the financial best interests, and it sounds as if they have taken professional advice. Letting someone live in the property rent-free is certainly nto compatible with their duty as PoA holders towards GM. In fact, even renting it out may not be, although this will depend on the rental yield after expenses and tax as compared with the income from the capital realised on sale if invested, and would require professional advice from a surveyor and an accountant at the very least.

    Where the COP guidance states that the wishes of GM will be paramount in the decisions, this really only applies to decisions about where she lives and her care, and then only insofar as these are compatible with her care needs. It doesn't (for example) allow for her wishes to override other legal requirements, including those relating to what is called deprivation of assets, which relates to the pwoer of Local Authorities to charge for residential care under s22 of the National Assistance Act 1948. So it sounds to me as though the PoA holders are acting correctly. There will be nothing explicit in the COP rules about renting out: this derivbes from wider provisions fo teh alw relating to charging for care, the duties of PoA holders and the legal concept of "best interests". A lwyer specialising in the field will explain it more clearly, albeit at a price.

    W
     
  3. Argon

    Argon Registered User

    Mar 8, 2015
    16
    Its very confusing as we keep getting second hand stories from all parties which is not the best thing... I think one side was working on the assumption that the deputies would effectivly work as the grandmother would have worked had she still been capable of decision making in this area. It does from my side seem a little harsh as had the grandmother been moved to care without the issue of dementia, the rent free arrangement would have continued until her grandaughter moved out or she passed away (harsh way to put it but true) but now because they have deputies it seems they are doing the exact opposite of what she would have done in the situation. Plus the council agreed to the grandaughter staying there with a charge applied on the property... confusing stuff!
     
  4. Delphie

    Delphie Registered User

    Dec 14, 2011
    1,252
    I discussed a similar situation with the OPG/CoP a while ago and the opinion was that it's not just about pounds and pence, and previous arrangements and wishes of the person concerned are important. One of my mum's properties, for example, is not rented out when it could be, and that is because she made it very clear over the years that the property was never going to have strangers living in it. There is no ambiguity at all, and to rent it out would mean going directly against what she wanted. So far this hasn't been an issue, and I would argue long and hard that it would be in her best interests to ignore what she wanted doing with her things!

    However, and that's probably the important bit, my mum is a wealthy woman and already getting wealthier, though it's money she will never now spend as all her needs are taken care of. There is no LA involvement and never will be, no question of 'deprivation of assets'. So ignoring her plans and wishes would simply give me a larger inheritance. I think most people would agree that this would be completely against the spirit of what PoAs and Deputies are tasked with.

    So, Argon, the part that's going to be causing the most problems, I think, is the fact that your family member's assets (the house, essentially) should be used to pay for her care. While the CoP might be okay with honouring previous wishes (if that is 'affordable'), local authorities don't care and look after their budgets, and they will look at the situation and decide if the property needs to start being used, either by being rented or by being sold. It's not completely out of the question that they'll agree to a charge and then look at getting their money back after the family member's death, but to be honest I wouldn't count on that.
     
  5. Delphie

    Delphie Registered User

    Dec 14, 2011
    1,252
    P.S. Sorry, I've just spotted that the local authority have already agreed to the arrangement.
     
  6. Argon

    Argon Registered User

    Mar 8, 2015
    16
    I think that was the main query - the council having already approved placing a charge on the property and her staying there. I think the grandmothers savings are near the threshold for the charge being applied but it has already been agreed so from a financial point of view the council wouldnt be effected unless the charge amount was higher than the value of the property... which wouldnt be for perhaps 10 years or so.

    It does seem that there is no official "statement" as such in this position from the CoP etc so everyone is really confused!

    But thanks for replies etc though... it is very helpful to see other people's perspectives and view etc and I can pass them on to the family.

    And the issue was also that the grandaughter was given permission to stay indefinately... she did also not want strangers living there. But again the grandaughter is the only one with an interest (albeit not being in a situation to buy) in owning the property.

    The grandmother pretty much brought the grandaughter up from a baby hence the close relationship
     
  7. Wirralson

    Wirralson Account Closed

    May 30, 2012
    661
    #7 Wirralson, Mar 10, 2015
    Last edited: Mar 10, 2015
    The passage in bold and underlined is NOT how the role of Deputies is supposed to work. Their duty is to act in the best interests of the grandmother, whcih is not the same thing. The interests of the granddaughter or the grandmother's wishes in respect of the granddaughter cease to be relevant in this situation.

    The statement "the council agreed..." also seems a bit odd to me. The LA has no power to agree or disagree with a course of action - all it should do is serve invoices on the Deputies. How the grandmother's assets are used to meet this is almost irrelevant from the LA's point of view. The LA will expect anything which will lengthen the time before there is a call on LA funding to be done, and has some powers in this respect - this is an aspect of the "deprivation of assets" point.

    The LA can't force the sale of the property - (at least not very easily - it can theoretically be done but is very difficult). All it can do is what it has done - impose a c(iii) registered land charge under the Land Charges Act requiring the debt incurred under s22 of the National Assistance Act is repaid before title can be granted to any purchaser. That isn't "approving" anything about the granddaughter staying in the property - it is simply securing the debt against real property owned by the grandmother. One thing to watch is that the debt accumulates interest at a compunded rate and it becomes eye-watering very quickly. Normally this isn't a particularly efficient way of using tehasset whcih is (probably) why the deputies are now taking the view they are. The granddaughter could seek legal advice on whether she has acquired an interest or right in respect of the property, but this is a specialised area requiring very expert legal advice. My hunch is she hasn't but that isn't a comment on whcih you should rely.

    W
     
  8. Argon

    Argon Registered User

    Mar 8, 2015
    16
    again I am only getting second hand stories so difficult to pass on... this is only what I have been told and have literally no knowledge here

    They also queried that there is apparently some kind of clause thing for disregarding the property if a relative under 60 is living there as sole residence and is incapacitated... and apparently there is no offical definition on that but they seem to say if they were getting a qualifying disability benefit and the grandaughter is apparently getting the higher rate PiP daily living component (whatever that means!)
     
  9. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    #9 jenniferpa, Mar 10, 2015
    Last edited: Mar 10, 2015
    That puts a rather different complexion on the issue, although I suppose this might be temporary due to her pregnancy.

    Having said that, if the granddaughter is truly disabled then the house should be disregarded by the LA and a deferred payment agreement would not be appropriate. However, this is totally separate from the COP issue. The guidelines under CRAG relate only to LA charging procedures: they have no relationship to the COP. The reason you can't find guideline for the COP is that there aren't any: this whole thing is very situational dependent. On the whole I agree with the solicitor who indicated that the deputies could be held responsible for failing to get a market rent on the property, but the only way to get a definitive answer is to go back to court and ask for guidance. It's not that the COP won't consider GM's former wishes but that they are the only people who can actually make the call.

    Have the deputies been in place for more than a year? That is, have they submitted a yearly report yet?
     
  10. Argon

    Argon Registered User

    Mar 8, 2015
    16
    I dont have details but apparently it is something non related to pregnancy and a long term issue / condition (again I have no idea what etc!)
     
  11. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    See my edit to my post above.
     
  12. Argon

    Argon Registered User

    Mar 8, 2015
    16
    I think the yearly report thing is coming up very soon but not sure on dates. There may also be some bad feeling between family members and I believe itis possible all sides are withholding info from others... I believe the grandaughter has only recently brought up the disability stuff thinking it was unimportant and not really wanting to share it for whatever reason...

    which naturally does not help!
     

Share This Page

  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.
  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.