Court of Protection, deputy, trustee etc

[Boldredrosie]

Hi everybody

I was wondering as quite a few people have been to the Court of Protection if somebody could help me with procedure.

Here's the facts:
Mum and I jointly own the house we both live in.
I have PoA over mum's financial affairs only.
I am tomorrow going to ask the local advocacy service to assign mum an advocate (they say she does not qualify for an IMCA)
I understand I need to get the CoP's permission to sell our house.
Memory clinic is dragging its feet about assessing mum's capacity but whatever it decides I can't imagine that any solicitor would spend more than five minutes with her before deciding she's incapable of agreeing a business contract like a housesale (hence the advocate).

What I am struggling with is trustee/deputy and I can't get the Court of Protection to give me an answer. Do I need to get both a deputy and a trustee for my mum? Do I find those people or does the CoP appoint them when I fill in the forms and submit them?

Anyone who can suggest what the next step is in moving forward to sell the house and ensure Ma's rights/wishes are properly recognised and protected would be very welcome.

(BTW I've just seen on another thread there's an information pack from Solicitor's for the Elderly, which I've not looked through yet),

 

[cragmaid]

As long as you use two solicitors, I don't know that you need to involve the COP. I bought my Mum's house and acted as her attorney under an LPA using two separate solicitors. and deposited the proceeds in her account. The solicitors were fully aware and they needed to see certified copies of the LPAs but otherwise it was straight forward. I know your situation is different, but I would ask.

 

[nitram]

You can't act both for yourself and as attorney for your Mum in the sale of the property, somebody has to act as trustee to protect her interests.

I don't think you need the explicit permission of the COP to do this.

I would approach the solicitor who will be acting for you in the sale, explain the position and take it from there.

 

[Saffie]

Do I need to get both a deputy and a trustee for my mum? Do I find those people or does the CoP appoint them when I fill in the forms and submit them?

If you already hold LPA for Financial and Legal affairs then there is no reason at all to have to become a Deputy.
You apply for Deputyship when you don't have LPA and it is too late, due to lack of mental capacity, to apply for LPA.

I was a Deputy for my husband and I had to appoint a Trustee to act on my husband's behalf in the sale of a holiday chalet we owned jointly. It was a bit complicated as it was just like any Court case with witness statements and evidence required but I did it alone and my only dealing with a solicitor was for the actual sale of the property as is usual once the Trusteeship was approved. I appointed a friend as Trustee and my neighbours witnessed this.

This was all via the CoP but I can't see really why, not being a Deptuy, you need to have any dealings with them as it is the OPG that oversee any dealings with LPA, although I think I've seen here that they do need to be informed of any large expenditure. Whether this applies to a sale too, I couldn't say but it would do no harm to ring them to check. They can then advise you and refer you to the CoP if it is necessary.

 

[Boldredrosie]

I was a Deputy for my husband and I had to appoint a Trustee to act on my husband's behalf in the sale of a holiday chalet we owned jointly.

Saffie the trustee that you appointed -- did you choose her/him yourself and how did you 'appoint' him/her? What was the procedure?

I've been told by quite a few different sources that I will need permission from the CoP for the sale of the house to ensure my mother's rights are protected. I think the issue is that I am her attorney but I have a financial interest in the house so there is a conflict of interest there. And what every the dopey sods in social services think about her capacity it's clear to every other person who comes in contact with her that for something like the sale of a property she is lacking capacity. So somebody other than another solicitor needs to represent her interests. Now, is that just an advocate or is that a trustee too?

I see now that there's no need for a deputy as I have the LPA but still struggling to figure out about trustee.

 

[Saffie]

I appointed the trustee myself and it was a friend of both Dave and myself.
However - and this is a big however, I was a Deputy and as such was deputising for the CoP who of course, held the power of attourney for him.

So it is different from a straightforward LPA. That gives you the power to act directly for your mother rather than though the court. It doesn't matter that your mother may have lost capacity now as when she did have it, she gave you the power of attourneyship over her affairs.

There is a conflict of interest, just as there was when I sold our holiday chalet, but I think the OPG are the people who can help you regarding advice and they will possibly direct you to the CoP.
I'm not sure that an advocate is the right person but have had no dealings with one so can't really say for certain, though I thought their function was slightly different.

I received a number of forms for the appoinment of a Trustee from the CoP and I did find some of the official teminology a bit confusing but I checked anything I was unsure about with the lady at the end of the telephone at the CoP and managed it with no problems.
As I had to do this at the same time as I was applying for Deputyship and finding a nursing home for my husband who was on delayed discharge in hospital, it was all a bit stressful!

I hope this helps but do ring the OPG for more advice.

 

[nitram]

I still think your best approach is to ask the solicitor who will be acting for you in the sale of the property, if you don't already have a solicitor you could choose one associated with
http://www.sfe.legal/

They have a search tool to suggest appropriate solicitors
http://www.sfe.legal/public/search

 

[Boldredrosie]

Thanks everyone. I have to say I've not found CoP or OPG helpful. I get conflicting information from everyone I speak with & there's a huge reluctance at both CoP and OPG to give any information because everybody's terrified of giving me advice that could be construed as being legal.

Both social services and the memory clinic have told me they think there's a conflict of interest in my selling the property hence the need for an advocate to speak up for mum's wishes rather act in a legal capacity.

Two solicitors have told me differing things. One suggested an IMCA but the local advocacy service say that's inappropriate for my mum (which is what I thought when I read more about them) but she is now on a waiting list for a general advocate. The other said to go directly to CoP and I think that is correct but I have been unsure about trustees and who appoints them. From what Saffie says it's somebody I'll have to find. I can't imagine anybody we know will be wiling to get involved with our miserable situation or deal with my mother. But if that's what we need then I'll need to find someone.

 

[Saffie]

The part of the trustee is really not onerous. It only involves signing a couple of forms in front of a witness and then signing with the solicitor who is dealing with the sale of the house.
I'm not sure why they would have to 'deal with your mother'. They will be acting for her so she will not be involved.

 

[Boldredrosie]

I'm not sure why they would have to 'deal with your mother'. They will be acting for her so she will not be involved.

Surely the trustee has to have some relationship/contact with the person for whom they're a trustee?

 

[Saffie]

Surely the trustee has to have some relationship/contact with the person for whom they're a trustee?

The whole point is that they are acting for a person who is not able to act for themselves.
If your mother was able to authorise the sale with you, there would be no need for a Trustee.
Nor for you to be her attourney either.

 

[Boldredrosie]

The whole point is that they are acting for a person who is not able to act for themselves.
If your mother was able to authorise the sale with you, there would be no need for a Trustee.
Nor for you to be her attourney either.

Ok, but while my mother has quite advanced dementia she's still got opinions (boy, has she got opinions) and I don't see how someone can be somebody's trustee without knowing the person.
I have finally had some clarification from the CoP -- apparently it doesn't have to get involved. As long as mum has a trustee then we can sell the house as the LPA and the trust under which the house is jointly held has no restrictions.

 

[Pickles53]

Absolutely your mother has opinions, but if you are appointing a trustee then by definition she does not have the capacity to make the decision as to what is in her best interests and so her opinions or wishes cannot be paramount. Otherwise presumably if she said she didn't want to sell the house you wouldn't be able to proceed at all.

I think the trustee's role is to ensure that you as deputy are not making a decision which would be disadvantageous to mum since you have a personal interest in the transaction as well as being mum's deputy.

 

[Saffie]

I think the trustee's role is to ensure that you as deputy are not making a decision which would be disadvantageous to mum since you have a personal interest in the transaction as well as being mum's deputy.

Pickles, Boldredrosie has LPA and isn't a Deputy which is why we've all said from the start that the CoP shouldn't need to be involved at all.

Ok, but while my mother has quite advanced dementia she's still got opinions (boy, has she got opinions) and I don't see how someone can be somebody's trustee without knowing the person.

The Trustee's job is simply to act on behalf of the other person in the sale of a jointly-owned property. That is all. Once a person has lost capacity, their opinions cannot be taken into account, just as Pickles has said.
As I have said, all my experience is as a Deputy which is under far more scrutiny than LPA which is far easier to administer and I do think you are looking for obstacles where none exist.
I'm glad that you now know where you stand regarding the CoP and so can get on with organising the sale of the house.

 

[Boldredrosie]

I'm glad that you now know where you stand regarding the CoP and so can get on with organising the sale of the house.

Thanks Saffie. I do feel as if I have a way forward. However, I have found both the memory clinic and social services very unhelpful. Age UK, on the other hand, have been very helpful and good at signposting.