Capacity is legally defined and medically certified so just being irrational doesn't qualify. The charity might also argue that if she has capacity she can do what she wants with her money
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Deliberate Deprivation Of Assets
- Thread starter Firecatcher
- Start date
What type of POA ?
Firstly i'd contact the office of public guardians & discuss with them this issue. They will advise & support you through issues
Can i flag up (in case you dont know) they can't come to you to pay even if they think its deliberate deprivation of assets. There would be no point at all in them trying to pursue this.
As POA you have a bigger legal team behind you
The Office of Public Guardians
The power of attorney is registered with them
So a simple phone call or email to the OPG will give you all the answers you need & help you require.
As a power of attorney you have a legal obligation to ensure all aspects are in best interests.
A power of attorney is legally answerable tithe office of public guardians.
Retrieval of assets / care provider issues ( safeguarding) etc can all be assisted by the office of public guardians but only while the POA / LPA is live or started a process with them before date of death.
Only if the POA has been enacted. Even then, that doesn't mean the LA can make a daughter pay care home fees, these are two different issues.
I'm sorry but i'm not advising about care home fees ....
LPA - is a power of attorney
my advice is regarding the amount given to the charity & the help & advice that the office of public guardian are able to give.
A fact i was unaware of myself until last year when i spoke to them & was informed of the help & support they give attorneys .
Obviously the lady lacks capacity as the other attorney gave permission. Depending on the type of Power of attorney severally & / or jointly could make retrieval of assets a lot easier.
You can only give a certain amount away each year, ( as anyone who has gone through probate will know)
As for the funding authority basic assessments want 3 month domiciliary care
When you come to residential care 3 years of bank statements.
Giving most of anyone's financial assets to charity is a red flag!
The father obviously also lacks capacity in some ways to see the impact of this decision
Even a suspicion of lack of capacity is good reason for the charity to decline a donation and as this was a sizeable donation (life savings) they should have proceeded with great caution as soon as they were aware of her diagnosis. My dad lacked the capacity to choose tea or coffee but it was never medically certified.
Totally agree capacity & amounts of money over the sum of £3000 will raise issues with Local Authority
If it's over £10000 then the bank should have flagged a large donation automatically even if authorised by a POA.
The charity will be well aware of these facts & has a legal obligation
ref Charity commissions
One of the four criteria for having capacity is the ability to weigh up the pros and cons of a particular decision. This is the most relevant criterion when an irrational decision is proposed. If the PWD understands all the consequences and still wants to make an unwise decision they are entitled to do so but the grey area arises when you have to determine whether the bad decision is just unwise or whether the PWD was unable to evaluate the likely consequences.
As POA you have a bigger legal team behind you
The Office of Public Guardians
The power of attorney is registered with them
So a simple phone call or email to the OPG will give you all the answers you need & help you require.
Many thanks to everyone who has made further responses to my post. On the advice offered I’ve emailed the Office of Public Guardian as it’s difficult to contact them by phone at the moment. My next step will be to contact the Charity Commission if the charity don’t respond soon.
Well done - let's hope the charity concerned sees the error of its ways without further argument.
I received an email from the Office of Public Guardian today informing me that my case is not something they’d get involved in. A solicitor representing the charity also emailed me and everything seems to rest on whether my Mum was considered to have capacity at the time to make the donation and understand the implications of her actions. The charity commission would ask for evidence of capacity. I can’t really say whether my Mum would have understood the longer term implications as I don’t live close by and much of my contact is by phone.
It’s certainly feels as though there’s little I can do to get the money back and I don’t know who I feel most angry towards - my Mum for giving away money she’ll need to pay for her care or the charity for accepting a substantial donation from a vulnerable person. As I’ve said previously I’ve always had a distant relationship with my Mum and this hasn’t helped.
It’s certainly feels as though there’s little I can do to get the money back and I don’t know who I feel most angry towards - my Mum for giving away money she’ll need to pay for her care or the charity for accepting a substantial donation from a vulnerable person. As I’ve said previously I’ve always had a distant relationship with my Mum and this hasn’t helped.
Oh that is annoying @Firecatcher. I think perhaps you need to talk to your father and see if it is worth him chasing up as he’d probably have a better idea of your Mother’s day to day capabilities. It does sound to me that anyone who gave away money they might need in the future isn’t acting sensibly though.
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Oh dear, its back to the elusive capacity. Which legally is there until shown otherwise.........
Have you contacted the Institute of Legacy Management? If it's a big charity they will be a member and that may help.
Well at least you've tried, and if the Council cuts up rough about deliberate deprivation of assets in future, you can prove it. Then it's between the Council and your mother, and nothing to do with you. You certainly can't be required to make up the difference.
I still think the charity has behaved badly and I'd be inclined now to write direct to the Chair of the Trustees to say so. You said it was a large charity, and it's just possible that the trustees haven't been made aware of your complaint, even though solicitors have been involved. I'd love to know which charity it is because it was one I normally donate to I'd stop forthwith!
The whole thing hinges on whether she had capacity. Capacity related to the decision being msde, it isn't an all or nothing situation. A person can have capacity to make a decision to buy a new coat but may lack the capacity to weigh up the pros and cons of a financial decision of more magnitude. So, was she able to understand the decision, and weigh up the pros and cons of the decision? If she knew full well what the bad consequences would be and understood the likely result, then she was entitled to make an unwise decision but if she didn't understand the ramifications she did not have capacity for that decision. You are going to need evidence and that might be difficult. Is there anyone who can provide a signed statement in support of the contention that she did not fully understand the implications of the decision? A GP, bank manager, anyone who has has dealings with her who might know that she was unable to weigh up the merits of deciding to make this large donation? If she has a written diagnosis of dementia and you have a copy, that might be powerful evidence. The Charity commission is the regulator for charities and you could try complaining to them although they are rather spineless. But first gather evidence, if you can, to convince the charity that she did not have capacity to donate the dosh.
Thank you. and yes I will try writing to the trustees.
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