It appears LPA is no longer enough to satisfy the Land Registry...

Discussion in 'Legal and financial issues' started by Shari12, Oct 9, 2018.

  1. Shari12

    Shari12 Registered User

    May 10, 2016
    12
    My Mum moved into a Care Home in June and I am in the process of selling her house to fund her care.
    We are now almost 3 months into the conveyancing process and despite having LPA over Mum's finances and property, it appears that's no longer enough to satisfy the Land Registry.

    According to the Buyer's Solicitor, they are insisting on a letter from Mum's GP, confirming she doesn't have the mental capacity to represent herself. I thought that was the whole point of LPA. Has anyone else experienced this?

    Obtaining such a letter is proving to be very difficult, because, when Mum moved into the CH, she had to change her GP and the new GP (who has only met her once, very briefly) is refusing to write the letter until my Mum undergoes a full Psychiatric Assessment, (in other words, a second diagnosis), a process that took 9 months last time.

    My Mum was diagnosed with Alzheimer's in August 2016, by which time she was well into the mid stages.
    She certainly hasn't improved in the last 2 years and can no longer sign her own name, or remember what she was told 2 minutes ago.
    I tried explaining to her new GP that, if my Mum had sufficient mental capacity to be selling her own home, she'd still be living in it... she wouldn't need full time residential care and I wouldn't need to be acting as her Attorney.

    I'm not sure how much more of this I can take... how many more hoops will I be made to jump through to protect my Mum and keep her safe... I'm hanging on by a thread...
     
  2. try again

    try again Registered User

    Jun 21, 2018
    196
    Does your poa state that you can handle your mum's affairs immediately or when she no longer has capacity?

    Having applied recently, I did wonder about the 'process' of taking over when capacity had gone and how this was measured.
    Sorry no advice, can the care home help at all?
     
  3. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,508
    Salford
    The problem is that regularly on here people tell you to register the LPA straight away so it's in place for when you need it, that means that anyone holding an active POA doesn't mean it prove that the donor of the LPA doesn't have capacity.
    People also advise that you don't put any conditions on an LPA like that to have it activated like the opinion of a doctor or similar person so holding an LPA alone doesn't prove anything, LPA's don't prove lack of capacity.
    The most expedient thing might just be to pay for an Independent Mental Capacity Advisor (IMCA) to come and do an assessment as they're professionally qualified to do one but your mum will have to pay, other than that you can try and do it through the NHS but as this is to do with her finances not her health then they may not want to et involved.
    A GP could do the same but they are allowed to charge for their services as it's not part of their NHS contract, hence why I think going down the NHS route may not work either.
    I can see where you're coming from and haven't heard of this happening before, but if the Land Registry start to do this I can see their point as an LPA is not a diagnosis as a lack of capacity because you can have an LPA and activate it before someone loses capacity and that's potentially a loophole for exploitation,.
    Google for an IMCA in your area and see what you get, one was appointed for my wife when she was sectioned and I found him very helpful.
    K
     
  4. Normaleila

    Normaleila Registered User

    Jun 4, 2016
    472
    I sold my aunt's house in August 2017 and there was no problem. Perhaps your solicitor should confirm that this is actually coming from the Land Registry and not from someone in the chain who's being over careful.
     
  5. love.dad.but..

    love.dad.but.. Registered User

    Jan 16, 2014
    3,609
    Kent
    #5 love.dad.but.., Oct 10, 2018
    Last edited: Oct 10, 2018
    I too sold dad's house as his attorney and had no such problems. Copy of LPA given to my solicitor at the beginning of the process and everything accepted without question. If it is the buyer's solicitor rather than land registry insisting perhaps your solicitor can remind them of the legality of the LPA and your authority as attorney to act as though you are your mum which is sufficient.
     
  6. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,299
    In fact, many people who live overseas leave a LPA with a family member to act for them when they may not be in the country: an LPA then acts like a general power of attorney. I think I would call the COP about this.
     
  7. Amethyst59

    Amethyst59 Volunteer Host

    Jul 3, 2017
    5,646
    Female
    Kent
    I’ve only just sold my husband’s house, using a registered LPA, and I had no problem at all. It was our solicitor who needed to be satisfied...not land registry. I, too, wonder if the query has come from someone else.
     
  8. nitram

    nitram Registered User

    Apr 6, 2011
    16,292
    Male
    North Manchester
    #8 nitram, Oct 10, 2018
    Last edited: Oct 10, 2018
  9. Fullticket

    Fullticket Registered User

    Apr 19, 2016
    372
    Chard, Somerset
    POA registered with one solicitor and when it came to selling mum's house it was handled by a completely different solicitor. No problems arose with any party, least of all the Land Registry who, I would have thought, would take the 'word' of the solicitor. Nitram posted as I started to type this - I would go to the Land Registry website and ask an innocent and factual question as a first step.
     
  10. Bod

    Bod Registered User

    Aug 30, 2013
    958
    My understanding of the LPA for finance is that "Capacity" is not an issue. It can be used freely if the Donor agrees.
    Health and Welfare, is very different, that does need a lack of "Capacity" it be confirmed before use.

    Bod
     
  11. Rosettastone57

    Rosettastone57 Registered User

    Oct 27, 2016
    455
    I am currently selling MIL house under POA and as others have said no one has queried this at all.
     
  12. try again

    try again Registered User

    Jun 21, 2018
    196
    there is an option on the LPA to either have immediate control or only take control when there is no longer capacity
     
  13. canary

    canary Registered User

    Feb 25, 2014
    7,190
    Female
    South coast
    Im thinking that there is a clause in the POA that says that it can only be used once capacity has been lost.
    I must say that if there is a clause stating that it can only be used once capacity has been lost, then this will be the way to go.
     
  14. try again

    try again Registered User

    Jun 21, 2018
    196
    The problem is if you go for the ' when capacity has been lost ' option is you then have to prove it at a later date!
     
  15. Baz22

    Baz22 Registered User

    Dec 30, 2017
    34
    Male
    South West
    Can see this from all sides and @Kevinl & @tryagain seem to be offering the best explanation. It is not uncommon for a clause to be inserted to protect against using the POA before capacity is lost. The Land Registry and the GP are therefore right to be protective particularly as it is a new GP. If you moved Mum into a care home has there been a deprivation of Liberty order? Could be right & proper that you have to show lost capacity but that said it does not need to take 9 months; talk with your GP about the need for urgency. I would also involve social services because if you are selling the house to self fund care they may be able to help in the interim. If you are selling the house but not using the money to fund care the Financial & Benefits assessment people will take a keen interest.
     
  16. love.dad.but..

    love.dad.but.. Registered User

    Jan 16, 2014
    3,609
    Kent
    However if the donor placed no restrictions or specific instructions on the LPA in this respect then surely the buyer's solicitor or land registry if indeed it is them should accept the legal authority of the attorney to process the sale for the benefit of the donor ie to pay care home fees as in my case with dad's house sale and others who have posted.
     
  17. canary

    canary Registered User

    Feb 25, 2014
    7,190
    Female
    South coast
    Absolutely, which is why I and others think that there is probably a clause stating that the POA can only be used once capacity has been lost.
     
  18. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,299
    I think until @Shari12 comes back and confirms or denies that there is such a clause in the LPA, we are now just engaging in speculation.
     

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