1. Q&A: Lasting Power of Attorney (LPA) - Thursday 27 Sept, 3-4pm

    Power of attorney (LPA) is a legal tool that gives another adult - often a carer or family member - the legal authority to make decisions on behalf of someone with dementia, if they become unable to themselves.

    Our next expert Q&A will be hosted by Flora and Helen from our Knowledge Services team. They will be answering your questions on LPA on Thursday 27 September from 3-4pm.

    You can either post questions >here< or email them to us at talkingpoint@alzheimers.org.uk and we'll answer as many as we can on the day.

Lasting POA

Discussion in 'Legal and financial issues' started by sunshinesusan, Jul 11, 2018.

  1. sunshinesusan

    sunshinesusan New member

    Jul 11, 2018
    2
    My father has Alzheimers and is in a care home. My mother has lasting POA and needs to downsize , as house too much for her now. She has been told that she cannot sell by a solicitor as would need another signature on the POA. We are very confused and wonder if anyone can offer an information regarding this.
     
  2. nitram

    nitram Registered User

    Apr 6, 2011
    16,153
    Male
    North Manchester
    Is there another attorney?
    Is the LPA 'joint' or 'joint and several'?
     
  3. Beate

    Beate Registered User

    May 21, 2014
    10,463
    Female
    London
    I am assuming they own the house together?

    I know it's not the same but when OH and I were renting privately and it came up for renewal someone told me I had to apply to the OPG for an independent person to sign on his behalf. I emailed them and thankfully they rubbished this completely, saying there was no conflict of interest, adding
    "You can sign the Tenancy Agreement in your name, 'on your own behalf' and you can also sign your name as 'the Registered Attorney for your partner".

    So for clarification, why don't you email them and ask their advice?
     
  4. karaokePete

    karaokePete Volunteer Host

    Jul 23, 2017
    2,689
    Male
    N Ireland
    Hello and welcome to TP. I hope you find this a friendly, informative and supportive place.

    I’m sure our experienced members will be able to answer your query. However, if you find yourself needing additional information it may be worth talking to the help line and it’s details are as follows

    National Dementia Helpline
    0300 222 11 22
    Our helpline advisers are here for you.
    Helpline opening hours:
    Monday to Wednesday 9am – 8pm
    Thursday and Friday 9am – 5pm
    Saturday and Sunday 10am – 4pm
     
  5. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,271
    OK - I think I know what this is about and also think it's a great pity that the solicitor didn't bother to explain further. When you own a house with another person, a very basic trust is set up. The Trustee Act requires 2 signatures when selling such a property. Now normally that wouldn't be problem, you'd each sign and everything would be fine. But in a situation like this, when one owner has lost capacity and the other owner is the first owner's attorney, the attorney can sign for themselves, but they can't sign for the person who they are the attorney for, because that's now only one person signing, no matter how many hats they may be wearing. There is a way round this however. Someone else needs to be appointed a trustee to act for the person who has lost capacity just in the matter of the house sale. And when I say appointed, it's not a "go to court and get appointed", it's more a case of drawing up the appropriate documentation.

    And that's what the solicitor should have told your mother.
     
  6. sunshinesusan

    sunshinesusan New member

    Jul 11, 2018
    2
    Jennifer! thank you that is so helpful. I think that partly my mother gets overwhelmed by all of these issues and doesn't listen properly.
     
  7. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,271
    And who can blame her? She must have a lot to deal with and this isn't even the sort of thing that is general knowledge - I only know it because it comes up sometimes on the forum.
     
  8. Normaleila

    Normaleila Registered User

    Jun 4, 2016
    439
    jenniferpa, you've explained that so clearly. I'm sure it will be helpful for a lot of people.
     
  9. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,439
    Salford
    #9 Kevinl, Jul 12, 2018
    Last edited: Jul 12, 2018
    It is as Jen says the case that someone needs to be acting on your dad's behalf and that doesn't need to be someone "official" just someone to act as a trustee on his behalf to ensure that what happens is equitable.
    If your mum downsizes and to a cheaper house then half the released equity should be put under your dad's name and the new house should be tenanted on the same basis as the current one otherwise he'll (potentially) be losing out on the deal.
    The Statutory Guidance notes to the 2014 Care Act, Annex E, Section 10 give the following example:
    "Example of where deprivation has not occurred
    Max has moved into a care home and has a 50% interest in a property that continues to be occupied by his civil partner, David. The value of the property is disregarded whilst David lives there, but he decides to move to a smaller property that he can better manage and so sells their shared home to fund this.
    At the time the property is sold, Max’s 50% share of the proceeds could be taken into account in the financial assessment, but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available.
    In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges"

    So moving home and using a partner's share of the old house is allowed and isn't classed as a deprivation of assets by the LA.
    Your mum can't act on both her own behalf and your dad's behalf as there is a conflict of interests and if she's the only name on the POA then there isn't another POA to sign.
    So the question is how do you get another trustee to ensure he interests are protected.
    I'm in a similar position to your mum, partner in care and thinking of downsizing and the CAB asked me if one of our children would do it, I don't know what the process is as they don't have a POA or anything but I got the impression, and I will emphasise that was just an impression that they didn't see it as a problem>
    Perhaps others have practical experience as I'm still undecided as to whether to move or not, but this house no longer holds any happy memories for me and I'm spending my time cleaning rooms no one ever goes in and the older I get the more pointless having a family home when you live alone.
    K
    Forgot to put in a link to the care act notes.
    https://www.gov.uk/government/publi...ce/care-and-support-statutory-guidance#AnnexE
     

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