Help B****y families

Discussion in 'ARCHIVE FORUM: Support discussions' started by suem, Jun 23, 2007.

  1. suem

    suem Registered User

    Jul 1, 2005
    61
    Worcestershire
    My husband and I jointly own our home, assets etc and were advised that as I have full control over everything having an EPA didn't really serve any purpose. We were however finding that professional people were reluctant to deal with us without an EPA in place as he has dementia. So one was drawn up with me as attorney.
    I do somewhat have my doubts of my husbands understanding of an EPA but as I was attorney dealing with what was already mine to deal with legally, felt there was no issue and this was drawn up with a solicitor who knew of his condition . The solicitor asked him if he understood what an EPA was and my husband replied "yes". My husband would have probally given the same answer if asked about quantum physics!

    I have 2 stepsons who don't help but like to put their tuppence worth in and put little thoughts in my husbands head about things they think are not quite right.
    They have tried in the past to buy me out of the house, so they gain control. They know that while I survive my husband they will not inherit anything.

    My husband is in respite at the moment and I have discovered that my stepsons have taken my husband to the same solicitors that we went to and revoked the EPA..............
    I am no longer on it and both their names are!!!
    I am staggered that the solicitor did not ask why a wife who lives with her husband in a jointly owned property is no longer named and sons who have had nothing to do with property etc now have control.

    When I challenged my husband about it he said 'his sons' felt I had control.....I do as next of kin!!!
    The sons are driving this as he clearly does not understand the implications and thinks it's more to do with who gets what when he dies.
    They seized the opportunity to take him out of respite to get it sorted and would have twisted things around to their own means.

    Obviously I am seeking legal advise but welcome any comments, ideas.
     
  2. Brucie

    Brucie Registered User

    Jan 31, 2004
    12,413
    near London
    I would not have thought they could do that.

    I would check urgently with the Alzheimer's Society Help Line legal person on Monday, also the Public Guardianship Office EPA Help Line.
     
  3. Skye

    Skye Registered User

    Aug 29, 2006
    17,000
    SW Scotland
    Sue, that sounds a horrible situation. I'm glad you're taking legal advice. I'm no expert, but it doesn't sound right that the original EPA could be revoked and a new one set up without your knowledge, particularly as your husband could not have understood what he was signing.

    I hope you have firm control over bank accounts, etc, with the new EPA your step-sons could drain the accounts. I would also be having a word with the bank manager to ensure that doesn't happen.

    Perhaps you should also warn the step-sons that should your husband need NH full-time care, and they have misappropriated funds, they will be taken to court.

    I'm sure someone who knows more about the legal aspects will give you more helpful advice, all I can give is lots of sympathy.

    Love,
     
  4. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    The problem is, until the EPA is filed, it can be revoked, which I assume is what has happened. This is the one very good reason to follow the guardianship guidelines of filing when the individual is starting to lose capacity. Once they have lost capacity but the EPA hasn't been filed, if someone ends up contolling them due to their loss of capacity, it's going to be far more difficult to prove that they didn't have capacity to make the new epa because the attitude of the guradianship office may well be "why didn't you file when you knew they had lost capacity."

    I'm afraid to say that the solicitor did you no favours when he drew up the original EPA: he should have taken pains to ensure that your husband knew what he was doing, to the point of interviewing him separately. I am not entirely surprised that he has shown the same, dare I say it, sloppy approach for the second EPA.

    Do get legal advice. However, have you considered that if this happened relatively recently, downloading the appropriate form from the guardianship website, filling them out (you do not need a solicitor for this) and then filing them immediately. Your step-sons would have a hard time proving that he had lost capacity in the short time bewteen signing their version and signing yours. However, this will almost certainly cause a battle royal. Whatever happens you're going to have a fight on your hands: whoever files the EPA first will find the other parties contesting it: I suspect it's going to get messy. Thinking about it, perhaps my advice is not so good: you are possibly putting yourself in the wrong. I would enquire of your legal advisor about filing the original EPA now. You will have a battle I'm sure, but perhaps you have medical evidence that you can use to support your contention that he no longer knows what he's signing.

    Jennifer
     
  5. suem

    suem Registered User

    Jul 1, 2005
    61
    Worcestershire
    I understand these can be revoked before thy are filed. Lets face it they may be drawn up years before they are put in place and people change their mind who they want to deal with their affairs.
    My main concern is that if it gets filed in it's current status with my stepsons and not me....how do I stand in a jointly owned property? Can they sell his half, forcing me out and gain control of our finances??
     
  6. Grannie G

    Grannie G Volunteer Moderator

    Apr 3, 2006
    69,550
    Kent
    Hi Suem

    I cannot see how sons can overrule you as next of kin. I would certainly get onto the AS Helpline and also see the solicitor.

    I would challenge the sons` action as coercion, in that they influenced your husband, against you, for their own gain, while he was unfit to make a rational decision.

    I cannot imagine what the solicitor was thinking of.

    I cannot believe, the second action will be valid, whether or not the EPA has been registered. You are next of kin and have joint accounts with your husband.

    Good luck. I am so angry for you.
     
  7. Grannie G

    Grannie G Volunteer Moderator

    Apr 3, 2006
    69,550
    Kent
    Although I have no legal expertise, I do not believe you can be forced out of the marital home, even if it is on joint names.

    If you sell the home, there might be a claim on your husband`s half.
     
  8. noelphobic

    noelphobic Registered User

    Feb 24, 2006
    3,452
    Liverpool
    I think that the problem with saying that Sue's husband was 'unfit to make a rational decision' is that it would then raise the question of why, if that was the case, the original EPA had not been registered. However, given the sons' actions, it may well be that they would have objected to it when it was registered. Hopefully their objections would have been disregarded but it would still have caused a great deal of stress.

    It does sound bizarre that the solicitor who had drawn up the original EPA naming Sue as the attorney, would then draw up another EPA in favour of the sons!

    I hope you get it sorted out in your favour soon Sue.
     
  9. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    Sue, if they try to file the "new" EPA you will, of course, contest it. I actually don't think you'll have that much difficulty doing that successfully: for goodness sake they took him from the respite home to do this - that in itself shows he's not capable of looking after himself. Also, any evidence you have that he a lost capacity already will support you in this (e.g results of medical test, SS evaluations, council tax rebate for severe mental impairment etc). Unfortunately, though, I "believe" that even if they are not sucessful in registering this new EPA, the other one is effectively revoked, so you will then have to apply for receivership. If they attempt to register the EPA, and are unsucessful, I doubt they would be considered appropriate candidates for a receivership position.

    What you need to do now is protect yourself from an incursions they may make on your joint accounts: with that new EPA they could access these and I am uncertain of how you could stop them if they still have your husbands name on them.

    With regard to the house: hmm I think they could purchase your husbands share (at fair market value) but they couldn't force you out, or force you to sell your share (at least legally). Furthermore, they would have to show that the funds raised were being used to support your husband. Actually they would be no better off if they did this. Assuming your husbands share of the house was willed to them anyway, by buying it they would have to use those funds to support him, while if it remained in both your names and you were living it it it would be disregarded from the point of view of funding. Having said all that, I think the court of protection would take a very dim view of their actions, particularly as it makes no economic sense from your husbands point of view.

    Incidentally, I realised after I typed my first post I was so wrapped up in giving you information that I didn't stop to express my feelings. I am, of course, absoutely horrifed that this has happened to you, and appalled that they would put you through this when you have your husbands illness to contend with. Disgusting little rodents is the nicest thing I have to say about them.

    Love
    Jennifer
     
  10. suem

    suem Registered User

    Jul 1, 2005
    61
    Worcestershire
    Jennifer
    You seem to have knowledge of this !!!
    If they try to register the EPA I will contest it, they however will also contest anything I try to register, so not sure where that gets us.
    Please explain about receivership.
    If the EPA is not registered, can my stepsons access my joint account??
    The house is not willed to them. We have mirror wills leaving to each other. They only inherit if we die together but of course after this fiasco they may take him to the solicitor to change this.
    I don't think he is at the stage for an EPA to be registered but I don't feel he understands what the EPA does. Both stepsons can act independently and when I told him that one can do something without the others agreement he didn't understand.
    Surely the solicitor used have asked why a wife was no longer included??
     
  11. Brucie

    Brucie Registered User

    Jan 31, 2004
    12,413
    near London
    "I don't feel he understands what the EPA does" I'd say that's the stage it might need to be registered...:confused:
     
  12. Michael E

    Michael E Registered User

    Apr 14, 2005
    619
    Male
    Ronda Spain
    Sue I have / am in a somewhat similar situation to you except the 'charmers' are actually both our children... Same motives.

    Why on earth do you not just take your husband to another solicitor and get another EPA signed? With a later date it will of course cancel the previous one. Having got it signed I would then register it.. I think the fact the date is later and that at the moment of signing he knew what he was doing....

    I suspect the solicitors problem was - If he is of sound enough mind to make an EPA he can of course 'being of sound mind' make them on a daily basis favoring the milkman if he likes.. His sane decision...

    You could of course just go ahead and register the first one.... fast... see what happens then.

    At the same time tell them (whether its true or not) that when their father comes out of his respite home he will move in with them - they have the EPA they can have him as well...... You of course will continue to live in the house for the rest of your life happy and content in the knowledge that the 'boys' are looking after their father on a daily basis....

    I cannot tell you how much I despise greedy interfering family members - but revenge is very very sweet and enjoyable.... Let them take 100% of the strain!!
     
  13. Tender Face

    Tender Face Account Closed

    Mar 14, 2006
    5,379
    NW England
    Sue, what a terrible situation for you to have to worry about on top of caring for your husband .... nodding my head at much that has been said already .....

    Just one thought ..... do your step-sons understand their responsibilities as attorneys? Do they understand the difference between acting as an attorney and say, an executor???? Are they beneficiaries of an existing will - or is that the problem???? Sorry that's rather brutal and looking at morbidity - but perhaps what I'm driving at is are they out to gain control of managing their dad's finances in the here and now for his (and your) benefit or for their future expected (and threatened) inheritance?

    Awful thoughts, sorry ..... but bottom line is any existing will and its named beneficiary(ies) may be far more important in the overall picture than taking on the almost thankless responsibility of being an attorney for EPA .......

    IF - and a big IF - your stepsons got to register/file the EPA with the Court if Protection (I don't think it would happen as you have legitimate grounds to protest against that) .... you could immediately call their every decision into question and ask for their actions to be interrogated ....... and their 'responsibilities' as they see them - to be revoked once and for all ....

    I'm sorry if that's of little comfort ....

    Love, Karen, x
     
  14. Tender Face

    Tender Face Account Closed

    Mar 14, 2006
    5,379
    NW England
    Sorry, my last post crossed with others giving valuable input ...... as well as legal advice I would be talking to your bank and any other relevant financial institutions first thing Monday ...... EPAs and joint accounts (where the attorney is not a named account holder) just don't mix ......

    Karen
     
  15. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    You know what they say "a little learning is a dangerous thing" and I would be the first to admit that my knowledge of this is gleaned from reading rather than personal experience. Having said that, as I understand it there are 4 options when objecting to an EPA. 1) that it wasn't valid in the first place (i.e. the person lacked capacity to make it) 2) that it is no longer valid (i.e. its been revoked) 3) the person still has capacity and the registration is premature or 4) the attorneys are not approprate persons to BE attorneys. Dealing with them in reverse order: I doubt 4) would fly unless the attorneys had a history of nefarious actions with regard to the donor, and those actions could be proved. I'm not sure if other financial irregularities would impact an attorney's ability to act: for example could you be an undischarged bankraupt? I don't know. 3) would involve the donor giving evidence. 2) If there's an EPA dated after the one being registered the first one has been revoked. However if the 2nd one wasn't valid I have no idea what happens then: I have a vague recollection that when this was discussed before, the general feeling was that the whole situation would be a wash and recievership would be the only option. 1) is self -explanatory I think.

    To be honest, I sense that most chanllenges to registering are based on number 4, which is why many (perhaps most) fail. When you get into validity of instuments you're in an entirely different ball game.

    This leaflet decribes objections http://www.guardianship.gov.uk/downloads/Objection_Leaflet.web.pdf

    This decribes the process of recievership
    http://www.guardianship.gov.uk/downloads/Making_an_application_no_pics.web.pdf
     
  16. Kathleen

    Kathleen Registered User

    Mar 12, 2005
    639
    West Sussex
    #16 Kathleen, Jun 23, 2007
    Last edited: Jun 23, 2007
    Sue

    You poor thing, what an awful mess!

    Be prepared for a long hard battle, when we tried to register Mum's EPA in January, my "dear" brother objected on the grounds that:

    1.My husband and uncle (Mum's brother) are not suitable to be attorneys, as he claims they are trying to sell the house at a low price to our daughter.

    Brothers "evidence"
    a photocopy of some house sales in the area, all in the exclusive private estates, the only house close to Mum's had the printed price crossed out and a much higher figure written over it.

    EPA holders evidence,
    7 valuations, updated as the house prices keep rising while we wait for a decision and written statements that the house will only be sold at a fair market price. There is even another one that was given by a nominated estate agent of brother's choosing.

    2.It was not valid.

    Brothers "evidence,"
    a photocopy of the transfer letter when Mum changed care homes 14 months after the EPA was made, saying she had "alzheimers with an element of vascular dementia, was active, ate well but was reluctant to drink and didn't like being bathed or showered."

    This, he says, "proves she has advanced dementia"

    EPA holders evidence,
    the solicitor who drew up the EPA will, if necessary give evidence at a hearing to confirm Mum had a good understanding of the document she signed.

    Has anyone from the court of protection made a decision yet? Well they did write to say they "accidentally" registered it on 21st March 2007, but until they have dealt with the objections the house can't be sold and the EPA holders powers are very limited.

    I know the C o P is there to protect vulnerable people, but this is bordering on the ridiculous, the stress in unbelievable and no-one from there has asked my sister and I what we think..........probably just as well!!

    All the very best of luck to you for a speedy decision in your favour.

    Kathleen
     
  17. Margarita

    Margarita Registered User

    Feb 17, 2006
    10,824
    london
    #17 Margarita, Jun 24, 2007
    Last edited: Jun 24, 2007
    I hope you don't mind , but was reading your back dated post as it all sounds so shocking what your Step sons are doing to you

    Sounds like they trying to grind you down , seeing that they been pushing for it for a long time , can't believe it sorry to say this , they sound like a nasty peace of work , getting at you when your most vulnerable.

    How did you find out about the POA , did the solicitor tell you or was it your step sons?

    As I wonder if they are trying to intimidate you


    get another Solicitor also to log a complain on your first Solicitor, as you should of been present when that happen ( new POA )


    solicitor could of informing you that it was going to happen

    Stay strong xx
     
  18. jude1950

    jude1950 Registered User

    Mar 23, 2006
    182
    Lincolnshire
    #18 jude1950, Jun 24, 2007
    Last edited: Jun 24, 2007
    Sue,
    I am so sorry that you find yourself in this situation. I myself have two step sons and they too have little to do with their father. If I were in your situation I would open up a sole account in your name and transfer any excess money from joint accounts you are legally able to do this as the account is in your name.
    As to the house situation I would get legal advice ASAP ..depending wether it is a joint tenancy or you are tenants in common they may not be able to touch the property I would also make an appointment to see the siolicitor concerned and ask him how he/she determined competancy. if they are your solicitor as well they
    surely had a duty to you and your husband to protect your interests.
    I did have a smile at the suggestion that you hand over the care to the step sons
    oh that I could be so brave too !!
     
  19. nemesisis

    nemesisis Registered User

    May 25, 2006
    100
    so sorry sue

    its so unfair whats happening to you i feel so sorry for you but please dont forget you loved your husband and did the best for him. its horrible but stepchildren (although nice to you still feel that they come first) please fight for your rights as I bet they would not have looked after your husband as you have xx
     
  20. Michael E

    Michael E Registered User

    Apr 14, 2005
    619
    Male
    Ronda Spain
    When I had just registered the POA and was in the 1 month objection/waiting period I actually said just that to my darling children, who suddenly, found the time to visit their mother for 24 hours...

    I said if they objected and wanted to 'share' POA then that was fine - I would go sailing and they could take their 'much loved' mama back to the UK with them!!!

    Worked great!
     

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