1. Expert Q&A: Living well as a carer - Thurs 29 August, 3-4pm

    As a carer for a person living with dementia, the needs of the person you care for will often come before your own. You may experience a range of difficult emotions and you may not have the time to do all the things you need to do. Caring can have a big impact on both your mental and physical health, as well as your overall wellbeing.

    Angelo, our Knowledge Officer (Wellbeing) is our expert on this topic. He will be here to answer your questions on Thursday 29 August between 3-4pm.

    You can either post questions >here< or email them to us at talkingpoint@alzheimers.org.uk and we'll answer as many as we can on the day.

Court of Protection challenging property sale

Discussion in 'I care for a person with dementia' started by support13, Dec 26, 2015.

  1. support13

    support13 Registered User

    Dec 26, 2015
    3
    This must be a very common situation but nevertheless would appreciate the thoughts from the collective wisdom of the forum. A long story but will attempt to summarise.
    An elderly relative, a life-long bachelor, was admitted to hospital in 2011 suffering depression and self-neglect. He is eventually diagnosed with (presumably early stage) vascular dementia and a few other relatively minor medical conditions. The family perhaps does not fully appreciate the potential legal ramifications of the diagnosis but is fully focused on providing immediate support, dealing with the here-and-now.
    On discharge he convalesces in a care home for several months and makes significant physical and mental improvements but still somewhat frail. Demonstrating good mental capacity he expresses a desire to return to independent living. However his home is in a poor state of repair and not modernised since 1970’s with round pin sockets, wiring not compliant with current safety standards, barely functioning solid fuel heating system, single glaze metal frame windows, steep staircase, high maintenance garden etc. Really not suitable for a frail pensioner to inhabit especially in forthcoming winter months.
    So the family assists to identify a modern properly pensioner-adapted bungalow on a warden supported site located within half mile of old home. Elderly relative is happy to move in and understands his old home must be sold, a financial value is agreed but sale not immediately executed.
    Elderly relative enjoys two years of independent living managing his own affairs, shopping for biscuits etc., and maintaining the small garden with minimal support. Then he suffers a decline in physical and mental health (said to be a characteristic step change with vascular dementia) and finally accepts to return to a care home with the understanding to dispose of the bungalow. Communication/understanding became more difficult but the sale of both properties is finally completed with family support and patient discussion.
    Some months later elderly relative suffers a further decline and the family now accept that he lacks mental capacity and apply for deputyship with CoP. The submission is currently at pre-hearing stage. However the CoP is challenging the sale of property subsequent to a dementia diagnosis and we are concerned the whole process could descend in to a protracted and unpalatable dispute.
    With hind-sight the family may have taken a different approach but the focus was always on the immediate care concerns. The CoP application now looks a nightmare-bureaucratic sledgehammer to crack a small nut of sorting out a few accounts. The family would withdraw the application but that does not appear feasible. Please advise how to respond to the CoP and what options and outcomes are possible.

    appreciate your thoughts and comments, thank you.
     
  2. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,852
    England
    Hi, and welcome to TP. I have read your post several times to see if there are any clues as to what the legal objections might be. I can't see anything obvious, so will throw out some challenge questions that might be relevant.

    I stress that you should be careful in what you post not to make yourself or your elderly relative identifiable. Therefore I am not expecting you necessarily to post answers to my questions; just to take them on board as you prepare for the court proceedings.

    I went through the Scottish legal system to get Guardianship for my mother. Although it is similar to deputyship the Scottish procedures are different and the ongoing supervision of a Guardian is different, so I cannot offer directly comparable experience.

    Here are my questions:

    Do you understand precisely what the objection is to the deputyship application, and who is objecting? Is it the Office of the Public Guardian that is raising objections, rather than the Court of Protection?

    Have you been told what to do next, and who told you that it was not feasible to withdraw or modify your application?

    In the last 4 years that you have described, who, of the family members, has taken which actions? (It's great that you are working as a team, but the court will look at the participation of each individual).

    Did anyone attempt to get Power of Attorney before capacity was lost? If not, why not?

    During the last 4 years, what advice did your elderly relative receive from a solicitor regarding his property affairs?

    Was the solicitor involved in the recent conveyancing aware that there was a diagnosis of dementia?

    Who is, and has been, handling his financial affairs?

    Did the proceeds of the property sales go into the old man's own bank account/s?

    Has your relative expressed dissatisfaction with the CH, with no longer having his own home to return to, or accused any of the family of stealing his money?

    I recommend that you re-write your excellent summary narrative in preparation for supplying a written statement, which may soon be asked for. Keep the chronology, and add a bit more detail of who did what, with dates if possible, and taking into account the challenge questions you already know about, and any more that may occur to you once you get more responses to this post. Provide a key at the beginning to the Dramatis Personae, e.g. ER = Elderly Relative, JohnS = John Smith, JudyS = Judy Smith, etc.

    From now on, keep a written record of financial transactions and decisions, of all contact with your elderly relative, and of the progress of your deputyship application, including making a written record of conversations and meetings.

    Judges look favourably on applicants who are organised, business like, and can demonstrate a good track record of managing both their relatives financial affairs and of meeting their social and welfare needs. As a rule of thumb, past conduct gives the judge a better overview of your suitability than heartfelt promises to act in the adult's best interests. If you have already been doing both then you should not fear the legal process.
     
  3. nitram

    nitram Registered User

    Apr 6, 2011
    18,830
    Male
    North Manchester
    I hope a solicitor used for both the property sales.

    If so they should have satisfied themselves that the elderly relative had capacity at the time of the transactions.

    You say "...the CoP is challenging the sale of property subsequent to a dementia diagnosis..." .

    Diagnosis of dementia does not in itself mean the person lacks capacity, get the solicitor involved with the sales to confirm that, in their opinion, the relative had capacity at the time of the sales.

    The COP are responsible for handling the affairs of anybody who lacks capacity unless there is an EPA or LPA, they are rightly concerned that the properties may have been sold by a person lacking capacity when there was not an EPA or LPA.
     
  4. support13

    support13 Registered User

    Dec 26, 2015
    3
    Hi, and welcome to TP. I have read your post several times to see if there are any clues as to what the legal objections might be. I can't see anything obvious, so will throw out some challenge questions that might be relevant.
    You are addressing exactly the right questions. It’s a great comfort to hear a well-informed response and I really appreciate the time you have taken to reply so comprehensively.
    I stress that you should be careful in what you post not to make yourself or your elderly relative identifiable. Therefore I am not expecting you necessarily to post answers to my questions; just to take them on board as you prepare for the court proceedings.
    I have provided some responses in the hope you may be able to reply further and also for the benefit of other forum readers (now and in future) who may be facing similar circumstances. Your suggested questions will certainly make the basis for a response to CoP.
    I went through the Scottish legal system to get Guardianship for my mother. Although it is similar to deputyship the Scottish procedures are different and the ongoing supervision of a Guardian is different, so I cannot offer directly comparable experience.
    Here are my questions:
    Do you understand precisely what the objection is to the deputyship application, and who is objecting? Is it the Office of the Public Guardian that is raising objections, rather than the Court of Protection?
    I believe the comment has come from the CoP, nothing specific mentioned which is not helpful. I assume this is just standard response in the case of dementia diagnosis and property sales. However it is well understood that lack of capacity should not be presumed and that has indeed been our experience. If I request more detail regarding the objection is it likely the CoP will respond? While I understand their purpose they do seem to sit in something of an ivory tower.
    Have you been told what to do next, and who told you that it was not feasible to withdraw or modify your application?
    A commercial agency was engaged (at some expense) to prepare and submit the application on behalf of the family. I have taken the lead on the application as the named deputy although this very much remains a joint effort. I no longer have a great deal of confidence in the agency, but they have advised preparing a statement laying out how the properties were sold under the circumstances (as you also suggest but lacking the level of detail).
    Meanwhile I have contacted the CoP directly by email (telephone support never answers). Replies provide little further insight apart from confirming they “await a response”. Regarding suspending or withdrawing the case, a CoP email stated I could apply using form CoP9. This looks like another ponderous bureaucratic burden and requires an explanation for the request. I’m just assuming this isn’t a way forward. As it happens I could legitimately cite chronic illness elsewhere in the family which is now demanding a great deal of personal time and resource. However I believe the CoP will still pursue enquiries and I feel that withdrawing the case could somehow compromises our position in the eyes of the court. Would particularly appreciate advice/thoughts about this.

    In the last 4 years that you have described, who, of the family members, has taken which actions? (It's great that you are working as a team, but the court will look at the participation of each individual).
    I won’t be too specific about the supporting family members here but will mention that the elderly relative’s older sister (now aged 79) has been key, along with her middle aged children, in providing care and support. It is indeed good that we have worked together as a team, never falling in to major disagreements, over a period of nearly 5 years and given we all lead busy lives with many other commitments.
    However we are particularly concerned for the elderly relative’s sister who has suffered a great deal of anxiety about her brother throughout these last years. In supporting the elderly relative we have also sought to alleviate this anxiety. The very last thing we now want is to be required to attend a court hearing. Is this probable or more likely resolved by exchange of questions/written statements?

    Did anyone attempt to get Power of Attorney before capacity was lost? If not, why not?
    An unsuccessful attempt was made. The elderly relative is shy and not comfortable in the presence of strangers.
    During the last 4 years, what advice did your elderly relative receive from a solicitor regarding his property affairs?
    Was the solicitor involved in the recent conveyancing aware that there was a diagnosis of dementia?
    Who is, and has been, handling his financial affairs?
    Did the proceeds of the property sales go into the old man's own bank account/s?
    Yes. All payments clearly visible with no outgoing funds other than care home fees.
    Has your relative expressed dissatisfaction with the CH, with no longer having his own home to return to, or accused any of the family of stealing his money?
    No problems with care home. No accusations of mishandling money.
    I recommend that you re-write your excellent summary narrative in preparation for supplying a written statement, which may soon be asked for. Keep the chronology, and add a bit more detail of who did what, with dates if possible, and taking into account the challenge questions you already know about, and any more that may occur to you once you get more responses to this post. Provide a key at the beginning to the Dramatis Personae, e.g. ER = Elderly Relative, JohnS = John Smith, JudyS = Judy Smith, etc
    From now on, keep a written record of financial transactions and decisions, of all contact with your elderly relative, and of the progress of your deputyship application, including making a written record of conversations and meetings.
    Judges look favourably on applicants who are organised, business like, and can demonstrate a good track record of managing both their relatives financial affairs and of meeting their social and welfare needs. As a rule of thumb, past conduct gives the judge a better overview of your suitability than heartfelt promises to act in the adult's best interests. If you have already been doing both then you should not fear the legal process.
     
  5. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,852
    England
    #5 Katrine, Dec 27, 2015
    Last edited: Dec 28, 2015
    The conveyancing was handled by a solicitor and the proceeds of the property sales went into your elderly relative's own account. The issue then would appear to be a requirement to show that he had mental capacity when he sold his properties? If they won't tell you the nature of the objection, how can you respond appropriately? :confused:

    Since, as nitram says, a diagnosis of dementia does not necessarily mean that the person lacks capacity, isn't it up to the COP to seek evidence of capacity at the relevant time? How exactly will they do that? I would imagine by requiring a statement from the solicitor that s/he was satisfied that the vendor had capacity. Solicitors have to be very careful in these circumstances, so it would not have been in the solicitor's professional interest to turn any kind of blind eye to the issue. You, the family, put your trust in the solicitor's professional judgment.

    You mention the "ponderous bureaucratic burden" of filling out forms and going through the Court to obtain deputyship. Yes, the application process can be time-consuming and stressful, and the ongoing duties of a deputy are more onerous than those of an Attorney under POA. This is because the adult has not voluntarily given you the powers you seek. You are asking the COP to award you these powers, under the scrutiny and supervision of the Public Guardian. The Court must be entirely satisfied that you are able to carry out your duties effectively, and at all times in the best interests of the adult concerned.

    I'm not sure what an agency offers as a service that would not be available from a solicitor specialising in this area of law? Why aren't they being proactive in guiding you through the process? I hope they aren't cutting you loose now they've had their fees and the proceedings have run into snags. :( If you don't have confidence in them, find a good solicitor to pick up the case and provide you with solid support.

    I notice you refer to yourself as the "named deputy" as if this is just a technicality for the purpose of going through the application process. You must understand that the deputy (or joint deputies if you choose to share the duties) is not some sort of team figurehead. The deputy may get help from other people with administrative tasks, but must be the driving force, and is the one who is accountable to the OPG.

    If you feel that you do not wish to have this lone burden, you should consider the alternatives. A sole deputy may employ a solicitor or accountant to assist with managing the adult's affairs, and to gather together the financial evidence for the annual report to OPG. Alternatively, a solicitor of your choice could be joined to the deputyship application so that you would share the role of deputy jointly and severally. Of course, the solicitor would be paid to act for your relative, whereas you as a lay person do it for free, with only out of pocket expenses paid.

    Have you considered including an additional family member as a joint deputy with you? Have you provided for a replacement deputy to take over if for any reason you were no longer able to act? I really would advise getting a solicitor to explain to you all the possible options because it is not too late to modify the application.

    Is the purpose of obtaining deputyship to manage straightforward bank accounts and investments, and pension income? Are your relative's outgoings for care fees, clothes and small personal items, toiletries, podiatrist, dentist, etc.? If you foresee the ongoing duties of the deputy as being simple and straightforward, then you just need support to get through the bumpy ride of the court procedures. With the right kind of legal assistance, it may not actually be that bumpy, but it does sound as if you may have to attend court at some point. Your solicitor should be metaphorically holding your hand! Of course it is scary for us lay people, whereas lawyers deal with these matters all day long.

    I would say, don't panic, and use this Christmas and New Year break to plan your next moves. You can search online for a suitable solicitor if you don't already have one. Look up "Solicitors for the Elderly" to find those local to you that are specialists. Prepare your summary notes so that it will be easy to brief your new legal representative. You are doing your very best for the family, and don't deserve to be stressed and bullied by officialdom. I do hope you can find a good lawyer to take much of the bureaucratic burden on their own shoulders. :)
     
  6. support13

    support13 Registered User

    Dec 26, 2015
    3
    Excellent advice again, many thanks. I think it is time to pause and carefully consider options which might just afford a little more flexibility than I first thought.
     

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.