LPA, gifting and more-worried about family in charge

Discussion in 'Legal and financial issues' started by RubberDucky, May 13, 2015.

  1. RubberDucky

    RubberDucky Registered User

    May 13, 2015
    8
    Hello all,

    I am supporting some family members who have LPA. I want to be sure they do not make any mistakes in how they handle their joint LPA. There are two sisters who have joint LPA for their Mum.

    They mean well and I think they are trying to do what they think is right, but I worry that they will overstep and cause themselves undo problems in future.

    Please could you have a look if you have time and let me know your thoughts?

    Here are the points and next I will ask the questions.

    Sisters have joint LPA

    Their Mum is in CH and has 1-to-1 24 hour care paid for by NHS (as she cannot walk, but thinks she can, etc) and of course has Dementia.

    Their Mum is rather well off and has pension, house being sold and other stocks and bonds

    Until now they have only written cheques to cover the obvious things like snacks, pads, items for mum she needs at the CH

    One of her daughters is also making changes in her home to bring her Mum home eventually, so is using her Mum's funds for those changes (such as having bathroom fitted)

    Both sisters are only now starting to also use their Mum's funds for Petrol for visiting and taxi fares for her ex Husband to visit her. (Long story, but she is widowed and is comforted by her ex being there, I suppose from long ago memories)

    One of the areas I have most concern about is that one of the sisters has written a cheque to herself to cover her two children's school fees. She paid for the fees from her account and then reimbursed herself these feels by writing a cheque. Her Mum never paid for these fees when she had capacity, but at times had been known to give a lump sum for helping pay for the children starting the school or help when the sister was struggling financially.

    Now the sisters are saying they are considering cashing out one of their Mum's stocks/bonds in order to build her account back up, after the school fees (which were nearly 5K). This is the account they created for Mum's direct debits (her pension and the way she pays existing bills, etc) by way of being LPAs.

    The sisters will be the direct recipients to their Mum's funds by way of her will when she passes.

    Are they out of line? What do they need to do going forward to make this right? They are feeling that since they are the recipients of her estate after her passing, why can't they use some of the fees for "important" things such as children's education and potentially a new car. One of the sisters wants to get a new car because her Mum will eventually be living with her and she will want something that can accommodate a wheelchair.

    Do they need to back off and pay strictly on those things that would directly go to their Mum's care? I can't imagine the school fees could be considered a gift either.

    Thanks in advance for any experience and knowledge. I will be happy to answer any questions as well!

    Rubberducky.
     
  2. min88cat

    min88cat Registered User

    Apr 6, 2010
    581
    Are they aware that they will have to submit accounts annually to the OPG, to show what has been spent and where? They will also probably have to pay an insurance bond in case they 'run off with the money'

    I think they need to be VERY careful with what they are doing, as everything should be in the interests of their mother. They will be allowed to make small gifts as their mother would have done, eg birthdays and Christmas. As for school fees, someone more In the know will probably be along later, but I would say that is definitely out of order.

    Generally I think they are on VERY dodgy ground!
     
  3. min88cat

    min88cat Registered User

    Apr 6, 2010
    581
    Should have said that being beneficiaries of their mothers will does not entitle them to spend her money whilst she isn't still alive.
     
  4. RubberDucky

    RubberDucky Registered User

    May 13, 2015
    8
    Thanks very much for your quick reply! I had a feeling this might be considered dodgy. Yes, it will be good to hear what others think in regards to school fees as well.




     
  5. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,776
    Salford
    Hi RubberDucky, welcome to TP
    No real argument that what they're doing is either questionable at best or just wrong.
    As the Mother's care is being paid by the NHS at present then it's unlikely that anyone is in a position to stop them, however, should the situation change then where the money went may be questioned by Social Services as it could be a "deprivation of assets" issue.
    Morally it's not something I would do but is it actually illegal? No idea.
    K
     
  6. Beate

    Beate Registered User

    May 21, 2014
    11,746
    Female
    London
    Since when do attorneys have to provide annual accounts to the OPG? I thought that only happened with deputyships? Anyway, school fees and new cars, way dodgy. Even though her care is currently paid for, this could change and they could be had for deprivation of assets. In any case, the money is still their mother's and has to be used on her. You can't give yourself an advance on your inheritance, it doesn't work like that. If they don't spend this money in their mother's best interests they could get in trouble if anyone shopped them to the OPG.
     
  7. min88cat

    min88cat Registered User

    Apr 6, 2010
    581
    Beate is quite correct, annual accounts are for deputies! I've had a few days away and my brain has ceased!
     
  8. jeany123

    jeany123 Registered User

    Mar 24, 2012
    19,036
    Durham
    Here is some information it is on this factsheet about LPA

    http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=154

    When making decisions, your attorney must follow the Mental Capacity Act. This means that they:
    must act in your best interests
    must consider your past and present wishes
    cannot take advantage of you to benefit themselves
    must keep all of your money separate from their own.
    If the attorney fails to comply, the LPA could be cancelled. If an attorney has taken advantage of you, this will be investigated by the OPG and the person could be prosecuted. Having an LPA in place can therefore offer you protection from potential future abuse.
     
  9. lin1

    lin1 Registered User

    Jan 14, 2010
    9,320
    Female
    East Kent
    #9 lin1, May 13, 2015
    Last edited: May 13, 2015
    I have romoved my explanation about LPAs as Beate has beat me to it, note to self , must learn to type quicker

    Personally I think what they have done is wrong, however a loan may be seen as acceptable by the powers that be
     
  10. Jessbow

    Jessbow Registered User

    they are out of order, and I think they prob know they are ( hence cashing the bond to build current acc. back up)

    whilst it might be acceptable to have SOME money from Mum to change a car to meet her needs, they shouldn't expect her to pay for it outright. They need a car themselves so surely they should pay their share too?

    Bathroom might be okay... as long as it is for mothers use and they are sure she is coming home.
     
  11. RubberDucky

    RubberDucky Registered User

    May 13, 2015
    8
    Thank you, each and every one! I have been really concerned and I am heartened to know my concerns are not unfounded. I want to support the family and I have stressed that they must absolutely become as educated as possible. Guessing in these cases is dangerous and can be regrettable quickly.

    I look forward to any other feedback available. This is extremely helpful!
     
  12. Beate

    Beate Registered User

    May 21, 2014
    11,746
    Female
    London
    I guess it's also a question of timing. If they buy new cars and bathrooms now but Mum only comes to live with them in two years' time I am not sure you can argue it was only bought to benefit her. Besides, who would give up total funding which also suggests a care home is best for her needs, to move their mother in?
     
  13. CLAIREDAY

    CLAIREDAY Account on hold

    Apr 22, 2015
    48
    With regard to the car I did hear of a case where a daughter was 73 and her mother was in care on CHC funding.
    Because she could only be accommodated in a home 35 miles from where the daughter lived and the daughter visited her most days the daughter's car racked up a very high mileage.
    The mother was only supposed to live for 6 months but she was still in the home 4 years later.
    The daughter took her car for a service / mot and the garage said the car was ok at that point but if the mileage continued it would need some expensive repairs in a few months.
    The daughter contacted the court of protection and it said it was ok to use her mother's funds to buy a new car to allow the visits to continue.
    Even if the CHC funding had stopped the mother has enough money to pay her care fees until she was about 115.
    I am not sure what would have happened if the mother had got to that age and the LA had got involved with paying the care fees and found out some of the mother's money had been used to buy a car or probably about 3 cars by then.
    Sadly the mother passed away about a week after the car arrived.

    Claire
     
  14. Pickles53

    Pickles53 Registered User

    Feb 25, 2014
    2,475
    Radcliffe on Trent
    Even if mum might have made generous gifts in the past, it cannot be considered to be in her financial best interests to pay for school fees or new cars. If the money remains in her accounts, it generates interest which is beneficial to her overall financial position. Selling stocks and shares should only happen where converting to cash would be expected to generate higher returns (not often the case) or where the mother has an immediate need for the cash (equally unlikely if she has full CHC funding).

    I do think that this type of thing would be seen as 'deprivation of assets'. However, it may be that even if she loses CHC funding she is wealthy enough to be self-funding for many years, so the LA may never get involved and the sisters wouldn't be 'caught' that way.

    So unless they can be persuaded that they are acting inappropriately, the only way anything is likely to change is if someone makes a complaint to the OPG.

    Are there any other beneficiaries of the will other than the two sisters? By spending mum's money beforehand on themselves, they are reducing the eventual value of the estate so any other beneficiaries might well feel aggrieved.

    When I think how hard it is to get CHC funding, these two are already likely to benefit more than most families because mum is not self-funding, yet they're still greedy for more.
     
  15. Saffie

    Saffie Registered User

    Mar 26, 2011
    22,499
    Female
    Near Southampton
    #15 Saffie, May 13, 2015
    Last edited: May 13, 2015
    I, too, think the bathroom story is dodgy.Is it being made into a wet room suitable for an invalid?
    Have the sisters had an assessment from an OT to say what would be suitable?
    If the mother returns home there will be amendments needed to be made to the bathroom to enable someone who is not mobile to have a shower etc.
    I'm afraid it isn't ringing true unless they have.

    I'm thinking the loan is dicey too unless it is done officially with records to show that it is being repaid gradually.

    As others have said CHC is regularly reviewed and once the mother stops trying to get out of bed and walk the criteria for this funding could be removed.
    From your description of her needs, many have failed to obtain CHC funding for far worse.
    It seems it is this unpredictability which might be the reason for awarding it now and this could change.
     
  16. RubberDucky

    RubberDucky Registered User

    May 13, 2015
    8
    Hi Saffie,

    For the question of TO, yes, they received direction on what is needed for their Mum from TO in order to convert Bathroom to accommodate their Mum's special needs. They have already started to make this changes, though. That much I am aware of, meaning one of the sisters has used Mum's funds to make the start, after she received TO instruction on what would be needed.

    I hope this helps clarify.


     
  17. nitram

    nitram Registered User

    Apr 6, 2011
    19,277
    Male
    North Manchester
    #17 nitram, May 13, 2015
    Last edited: May 13, 2015
    Most of what they are doing is wrong, they seem to be assuming that because they are beneficiaries they can spend her funds on themselves whilst she is still alive.

    Visiting cost are arguably OK as is the bathroom conversion but it would be wise to check this with the OPG.

    Have they seen the will and therefore know they are the only beneficiaries?

    You say she is currently NHS funded and also not short of capital, unless the NHS funding ceases making her self funding and her funds drop to near the upper limit nobody will investigate their handling of her finances unless a complaint is made to the OPG.
     
  18. Delphie

    Delphie Registered User

    Dec 14, 2011
    1,258
    This is tricky because in these situations there can be a lot of 'it depends'. On the face of it the school fees might raise an eyebrow but, as my mum's Deputy (so a lot more accountable!) I had a similar dilemma. My mum always said she was going to give my sons substantial support through university. She was passionate about education, very much against young people getting into debt, and financially comfortable.

    But she got ill before they got to university.

    Because the amounts were so significant (as you can all imagine, I'm sure) I put the question, with the actual numbers, to the OPG, as I certainly didnt't feel I could just gift it. I got a very short reply saying of course give them the money, with a little reminder that I don't have to ask as I've been given the discretion to 'gift' in the Deputyship order (which, of course, I knew, but this was a fair bit more than a birthday prezzie... ).

    So my sons are having the help grandma promised and the amounts have gone down on the annual reports, and that's that. To be perfectly honest, I was a little surprised but happily so. This is what my mum wanted, it's a real help to my boys, and the amounts make no difference to her anyway, as she has more than enough to cover her excellent care, even if she lives to be 150.

    I know this doesn't address all the issues raised, but I do remember having a conversation with one of the OPG people who said quite clearly that it's not all just about pounds and pence.

    If the sisters are doing a good job of looking after their mum, and if one of them needs a bit of financial help to put in place some practical aids (like a wheelchair-friendly car etc) then it might be ok.

    I can see how it could be argued either way, that they're taking advantage, or that they're doing their best to honour previous wishes (maybe the mum had promised to help with school fees, lots of grandparents do).

    My bottom line would be how well the mum is looked after. If she goes to live with one of the sisters and has everything she could possibly want and brilliant care then I'd probably say leave well alone. If she's neglected and the sisters are getting more out of her assets than she is, then there might be a case for contacting the OPG to voice concerns.
     
  19. 2jays

    2jays Registered User

    Jun 4, 2010
    11,598
    West Midlands
    Mums money is mums money
    Would her daughter just take money out of her mums purse when she wanted some before mum got dementia??

    In my opinion paying school fees out of mums money, is a form of theft and the bathroom senario seems very iffy to me.... Are they both prepared to pay back the money "borrowed"

    For all they really know.... Their mum might have left all the money to cats homes once she died and only told her kids or showed them an old will....

    Just my thoughts.


    Sent from my iPhone using Talking Point
     
  20. RubberDucky

    RubberDucky Registered User

    May 13, 2015
    8
    Hi all,

    You are absolutely brilliant to be such a support and so quick with helpful info!

    To answer some questions:

    Sisters are absolutely doing things in good faith and are constantly visiting their Mum, every single day. They worry over her care and make sure they are totally involved. I have to say that I don't think they are trying to be greedy. I think they may not fully understand the importance of how things get done.

    I have seen cases where the children have been absolutely trying to gain wealthy by mistreating their loved-ones. I am sure that isn't the case here.

    But of course, it is imperative not to give the appearance of that. And that has just been evidenced by so many replies. It doesn't "look" the best and I want to educate them about that.

    Funding was granted for their Mum, even when they said their Mum could afford her own care. They were ready to get things sorted, assuming that Mum's funds would pay her way. They were astounded when it wasn't.

    As far as the will, they have a copy, per their Mum. They are the only two to claim inheritance. They have a solicitor to help them for their Mum, but they had not given him all this information yet. I wanted them to do this BEFORE they do anything. I will certainly insist they do not do another thing without approval from the Solicitor.

    I really think their actions have been due to lack of knowledge and an assumption that if Mum could agree, she would agree. But as we know, we absolutely must follow protocol. I am sure their Mum would not want them to be getting into any problems due to these things and I think they will be horrified to learn what you have shared today.

    The good news is that they can become aware and responsible as it relates to their Mum's ongoing care. It is ALWAYS best to check first, in my book.

    Thanks again all!!

    And if there are any other questions I can answer, please let me know. Your input is priceless!
     

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