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Expert Q&A: Protecting a person with dementia from financial abuse - Weds 26 June, 3:30-4:30 pm

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SamC

Registered User
Aug 5, 2013
22
Hi Sam, we have received this question by email:

Can a mortgage company force you to sell your home if you haven’t got power of attorney for the person who has dementia
Hi

Thanks for your question.

To sell a home the home owner(s) needs to have mental capacity to make the decision to sell and then to put the home on the market, agree to the sale and then sign all the official documents. Therefore, if the home owner lacks capacity, or if the home is owned jointly and one owner lacks mental capacity to make this decision then someone will need legal power to sell the house on their behalf.

Legal power here could be an attorney acting under a Lasting Power of Attorney (LPA) for property and financial affairs or an Enduring Power of Attorney (EPA). Alternatively it could be someone that has been appointed as a deputy and their power includes being able to sell the home.

If there is no legal power then someone can apply to become a deputy so that they can do this, and then manage the person’s money before and after the sale. Alternatively, a court order can be granted to allow the sale of the house.

I’m not sure about why this issue has arose, but if the home needs to be sold for legal reasons, such as the mortgage contract being broken then there will be a way round the owner not have capacity to sell, usually it will be a court order. There must be a legal reason here though as to why the sale should happen and a court would consider this before granting any order for a house to be sold and can rule that no order will be granted.

Again I’m not clear as to why this has arose, if you haven’t do speak to the mortgage company about the situation and see if it can be resolved. You may also wish to seek independent legal advice.

I hope this helps.
 

SamC

Registered User
Aug 5, 2013
22
Another question by email:

My mother who has now passed away was financially abused by her husband. He obtained half her savings in Santander, £17,666.50 and made cash withdrawals from her account totalling £8,400 while he had power of attorney for her. However because the total amount involved was less than the likely court costs, approx £30,000 it is not worth my while taking him to court to recover the sums involved.

A solicitor wrote to him last year asking him for an explanation for the payment of £17.6K given to him by his wife, the points he made to justify the payment were all completely untrue, I have evidence to prove it.

The difficulty I have is that my mother was married to him for 31 years however she was diagnosed with the early onset of Alzheimer’s ten months before she made the payment to her husband, he therefore financially exploited a very vulnerable woman.

Is there anything at all that I can do in this situation to recover the funds that he fraudulently obtained ?

Your advice would be greatly appreciated.
Hi

Thanks for your enquiry. I am sorry to hear about what has happened.

I’m sure the solicitor would have gone through this with you, but in these types of cases there are two different legal routes and you can choose to follow either or both if you wish to. If you are wishing to claim back the money then to do this you would need to go down what is classed as the ‘civil’ court route. This is where you would bring the claim against him, in doing this as you have mentioned you would need to bear the court costs and the costs for legal representation if you choose to have some. If you win you may be able to claim some or all of these fees back (the judge will decide). As you say it is expensive and can be a stressful process. There is more information and guidance available here:

https://www.citizensadvice.org.uk/law-and-courts/legal-system/taking-legal-action/

https://www.gov.uk/make-court-claim-for-money

The other route is the criminal route, and a prosecution of theft/fraud which is what this would most likely warrant may lead to a custodial sentence, community service and/or a fine. I’m afraid this doesn’t get the person their money back as this is done via the civil procedure. If you wish to go down this route then you can report the matter to police and see if they will make any criminal prosecution, they must take the matter seriously and investigate but evidence will be needed to make a conviction.

Therefore, and apologies if this is not the answer you were hoping for, to recover the funds it does need to go down the civil route, which I’m afraid can be expensive. You can also look at criminal prosecution as well to try and bring some justice for what has happened.
 

SamC

Registered User
Aug 5, 2013
22
Another question by email:

A relative has dementia and DWP helped a close relative become an appointee to claim attendance allowance when care needs increased after a hospital stay. The relative with dementia does not have any power of attorney or deputyship existing, does not own property and has one bank account with savings between £10-£20k. The relative has been judged by their psychiatrist as not having capacity. All income is from benefits only ie pension, pension credit and attendance allowance.

Whilst I do not have concerns that money is being spent inappropriately, there are things that the appointee is not doing that concern me and I would like to clarify the best way to proceed to enable items to be purchased that would improve the relative’s quality of life ie a new comfortable chair and bed as recommended by their specialist nurse. I have asked the appointee to consider purchase of these items but nothing has happened as the relative is the main carer, cannot do everything and is not financially savvy.

I have investigated applying to be a deputy for the person myself but the costs involved seem prohibitive, as the costs of setting up and running would eat into my relative’s meagre funds. What are the options available to us, given that I understand that banks do not like an appointee to hold large savings in an appointee account but that it is also onerous and expensive to apply for deputyship for a relative small level of savings? I do not know the answer to this question, but suspect that the appointee does not realise that they have to set up a separate appointee bank account and have been using the original account.

As a larger issue, I think many people may fall into the category where funds in an account are or will become more than banks allow for appointee accounts but that deputyship will be very cumbersome and expensive?
Hi

Thanks for your question.

This as you have found out is tricky and many people do find themselves in this position of the person not having enough money to warrant applying for deputyship and yet there is money in the account that could be spent on them, but applying for deputyship would mean spending most of what they have. Not sure if you have taken this into account but if your relative is on a low income/has low savings then they would most likely be entitled to a reduction or exemption of the deputy fee and it is possible to complete the application without legal representation.

An appointee as you have mentioned is appointed to only access and manage the person’s benefits – this should be paid to them and they are then empowered to spend this on the person in their best interests. This may be to pay bills or buy items that are needed. An appointeeship does not give the person the legal power to access or manage the person’s bank account or make decisions on their behalf like an attorney or deputy can.

I am assuming you have spoken to the appointee and asked about the spending and the equipment you think will be useful? I say this as if you can sort this out informally that would be easier than having to do this more formally. It may be that the carer is overwhelmed by everything that they are doing, so you could see if there is anything you can do to help, or if they are struggling with the finances ask if they want you to help with those, or even to become the appointee. May be worth considering if there is someone that they will listen to or open up to, for example you mentioned that the chair and bed were recommended by a nurse, were they aware of that? If the doctor recommended them would this help? Or a social worker if one is involved? Again in terms of the funds generally is there anyone that they would listen to, can talk to about this and are likely to take advice from?

If trying to sort this informally does not help, and you are concerned that money is not being spent in their best interests then your next step would be to have this looked into more formally. To do this you would need to speak to the Department of Work and Pensions (DWP) and share your concerns, they should look into this. The alternative would be to mention it to the local social services who could look into this or offer them some support. I do think as you have alluded to in your question this would be better resolved informally so it may be the matter of considering how to get the appointee to understand their role and that they should be spending the money in the person’s best interests. If you cannot do this and you feel that it needs to be looked into then you would need to take the formal approach to get this addressed.
 

ALS carer

New member
Jun 26, 2019
1
Hi

Thanks for your question.

This as you have found out is tricky and many people do find themselves in this position of the person not having enough money to warrant applying for deputyship and yet there is money in the account that could be spent on them, but applying for deputyship would mean spending most of what they have. Not sure if you have taken this into account but if your relative is on a low income/has low savings then they would most likely be entitled to a reduction or exemption of the deputy fee and it is possible to complete the application without legal representation.

An appointee as you have mentioned is appointed to only access and manage the person’s benefits – this should be paid to them and they are then empowered to spend this on the person in their best interests. This may be to pay bills or buy items that are needed. An appointeeship does not give the person the legal power to access or manage the person’s bank account or make decisions on their behalf like an attorney or deputy can.

I am assuming you have spoken to the appointee and asked about the spending and the equipment you think will be useful? I say this as if you can sort this out informally that would be easier than having to do this more formally. It may be that the carer is overwhelmed by everything that they are doing, so you could see if there is anything you can do to help, or if they are struggling with the finances ask if they want you to help with those, or even to become the appointee. May be worth considering if there is someone that they will listen to or open up to, for example you mentioned that the chair and bed were recommended by a nurse, were they aware of that? If the doctor recommended them would this help? Or a social worker if one is involved? Again in terms of the funds generally is there anyone that they would listen to, can talk to about this and are likely to take advice from?

If trying to sort this informally does not help, and you are concerned that money is not being spent in their best interests then your next step would be to have this looked into more formally. To do this you would need to speak to the Department of Work and Pensions (DWP) and share your concerns, they should look into this. The alternative would be to mention it to the local social services who could look into this or offer them some support. I do think as you have alluded to in your question this would be better resolved informally so it may be the matter of considering how to get the appointee to understand their role and that they should be spending the money in the person’s best interests. If you cannot do this and you feel that it needs to be looked into then you would need to take the formal approach to get this addressed.
Yes I’ve definitely spoken to my relative about spending the money ASAP as the items were recommended almost a year ago now and the answer is always - that they’ll get around to it. I have mentioned informally to social services but they seem reasonably unconcerned. I’ve found it very upsetting that our relative’s life could be being improved.
 

SamC

Registered User
Aug 5, 2013
22
Hi,
My dad (80 years) has dementia and lives with his younger brother who is is 65. They have lived together for about 19 years, during which time my dad's brother has rarely contributed to any bills or done any housework. My dad has constantly bailed him out financially. My dad now has diminished understanding of finances and has a debt to his pension scheme of several thousand pounds due to overpayment previously. He continues to give his brother money every day to buy him a newspaper, cigarettes and food sundries. This is a relatively small amount of money to be spending but somehow he is spending a lot of cash. My dad rarely goes out so does not go and spend on his own. Whenever I visit, there is little to show for any expenditure. In the last two weeks, he has spent over £400. I have spoken to my dad's brother in the past, because my dad used to write down in his diary when he had given him money but he does not do it anymore, and told him not to take my dad's money for himself. He has always said it would stop but it never has. I believe he probably takes money to buy my dad things and does not give the change back. I have reported it to Social Care and they assessed my dad as having capacity (which is incredible as my dad does not know how to get to the bank or how to get money out - he has to get his brother or me to go with him - and does not understand or have any concern about paying his debt to his pension company, nor can he retain any information for very long) and also spoke to my dad's brother who told them that he used to ask my dad for money but does not do it anymore. Social Care then told me that it just appeared to be a family feud and basically it was my word against his. My dad's brother seems to be lying to everyone (he lies about anything to suit himself) and laughing in our faces as he continues to scrounge off my dad. I do not have concrete evidence but there is no other explanation. My dad's brother has had three spells in hospital this year and each time he has been there, my dad has stopped spending so much money, and on his return my dad has started spending again, so there is really only one conclusion to draw. I have POA but this only gives limited powers as my dad can still draw cash from the bank, which he does regularly and often has about £300 in cash in his back pocket. I do not want to apply to the court either as I live quite far away and it would not be practical and in any case my dad would still end up with some cash, much of which would probably go to his brother. His brother is also in debt to their landlord and I believe he asks my dad for money to pay for that too (again, no actual proof but he is on benefits and has very little money). My dad does not seem concerned and just carries on giving him money. My wife has said to just leave them to get on with it as my dad is happy and could not be living in his flat if his brother was not there (even though he does nothing to help and we had to get carers in because his brother did not bother to help him in any way - even didn't remind my dad to take his tablets). I accept my dad's brother has no legal obligation to my dad in terms of providing care. However, it is extremely frustrating and although my dad perhaps used to willingly and knowingly help his brother financially, I believe that his condition now means that he is unable to make sensible decisions about how he manages his finances and that his brother is basically exploiting the situation. I would appreciate any advice, even if it is just to let it go, although I am finding this difficult. Many thanks.
Hi

I am sorry to hear about everything that has been happening.

In terms of what to do next is quite tricky and depends upon a number of things. Firstly, and this is something that you have mentioned is your dads own ability to make his own decisions – and whether he has what is called ‘mental capacity’. If your dad is able to make his own decisions and so ‘has capacity’ then it is his choice to make, even where we make think a decision is unwise it is still his decision to make. You have mentioned that his brother has lived with him for years and he has generally helped him, so although it may seem unwise to us that he is doing this, especially when he is in debt to the pension company it is still his choice and as your wife says helping his brother may make him happy.

Alternatively, if you feel that you dad actually lacks the capacity to make the decisions about his finances and how to spend his money then as his attorney these would be decisions for you to make. The test for capacity is outlined on our website here - https://www.alzheimers.org.uk/get-support/legal-financial/assessing-capacity#content-start

Capacity is time and decision specific, so this can mean that someone may not be able to make a certain decision one day but can the next, or that they can make a decision about buying food in the shop but may not be able to make a decision about long term finances or investments. This can make it tricky as there cannot be a blanket ‘this person lacks capacity to make any decision’ instead it is a matter of considering when a decision needs to be made if the person themselves can make it. As an attorney before you act you have a duty to ensure that the person cannot make the decision themselves and to support the person to make any decision before you decide that they lack capacity and make the decision for them.

If you believe that he lacks capacity to make certain decisions then you as the attorney have the power to make that decision. I understand that the social worker felt he had capacity, but as said capacity is time and decision specific so this can change. If you wish to you can look at getting a private assessment of his capacity from a private social worker, or if he has a consultant or a medical or health professional that has been helpful you could see if they can help with this or advise further.

If it is felt that he lacks capacity to make certain decisions regarding his finances, as said you have the power to make those decisions. This does give you some power to protect him. If he has capacity you would need to ensure that he consents to anything that you do.

What some people do to help with finances is consider putting a withdrawal limit on the account and this can help with limiting spending if needed – as said if your dad has capacity he will have to agree to this. I know some people have found having different accounts can help, one account for bills and savings etc. and the other for everyday items and this is limited to having only so much in it per week and has no overdraft facility etc. and the person has access to the latter. Again your dad would have to agree to this if he has capacity. Therefore, if your dad has capacity it is working with him to find a solution.

Ultimately, where you are making decisions for him it is about what is in your dad’s best interests. This is a wide concept and must include your dads past, present and future preferences and his wishes and feelings. Therefore, if your dad has always been happy to do this and wishes to this must be considered. BUT this needs to be balanced with his financial needs as any gifts etc. need to be proportionate to his estate and ensure that his own financial needs are met so this can be a tricky balancing act.

Therefore, you as an attorney need to carefully consider his capacity and ability to manage his own finances and make these decisions for himself. If he has capacity then it is the matter of working with him to support and help him to make these decisions, but ultimately they are his decisions to make even if we see them as being unwise. If he lacks capacity then as the attorney you can make decisions and manage his money but this must be in his best interests. As you have done if you are ever concerned that he is being taken advantage of/financially abused you should contact the local social services who are duty bound to investigate - and this is something they should do regardless of his capacity to make his own decisions.

Apologies if this is not the answer you were looking for, depending on dad’s capacity it may be the matter of keeping an eye on things and being ready to step in when needed and in the meantime trying your best to support dad and help him make his own decisions and if needed refer back to social services.

I hope this helps
 

Saun_A

Administrator
Staff member
Jul 9, 2016
2,204
Thank you so much Sam for answering all the questions. The answers are incredibly detailed and tailored. I hope they are helpful to everyone. We hope to have you back again another time.
 

SamC

Registered User
Aug 5, 2013
22
Thank you so much Sam for answering all the questions. The answers are incredibly detailed and tailored. I hope they are helpful to everyone. We hope to have you back again another time.
Thank you all for welcoming me today, I really hope this information has helped

Sam
 

Saun_A

Administrator
Staff member
Jul 9, 2016
2,204
Thanks everyone for joining us. This brings this Q&A session to an end. Hope it has been useful to those who asked questions as well as everyone who is in a similar situation. Thanks once again to Sam, our expert who answered all your questions.
 
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