Sale of 2nd property
- Thread starter SeanPat
- Start date
As someone said above, I find it very surprising that your husband was found to lack capacity in relation to decisions about his living arrangements but was found to have capacity in relation to decisions about his finances. I think that you should challenge this. If he cannot understand why the property needs to be sold then I question how he can have capacity.
The psychiatrist assessed him to lack capacity to decide where he lived, it is likely if he had been asked about financial capacity he would have also said he lacked financial capacity.
Using TOLATA would involve you in a lot of hassle together with legal and court costs.
If the LA are convinced he has capacity and apply to the court for the house to be sold the cost will come out of his finances, your only involvement would be agreeing to the sale of the house.
This could be the best way to force the house sale and release cash for you.
You could ask, in writing or email, the LA director of finance their policy regarding somebody in residential care who has been assessed by one of their social workers as having financial capacity and is refusing to sell a property when the proceeds are required to fund his care.
This should sharpen the LA focus.
Moving on somebody will have to get deputyship to handle ongoing care fees, this will require a formal statement of his incapacity.
Using TOLATA would involve you in a lot of hassle together with legal and court costs.
If the LA are convinced he has capacity and apply to the court for the house to be sold the cost will come out of his finances, your only involvement would be agreeing to the sale of the house.
This could be the best way to force the house sale and release cash for you.
You could ask, in writing or email, the LA director of finance their policy regarding somebody in residential care who has been assessed by one of their social workers as having financial capacity and is refusing to sell a property when the proceeds are required to fund his care.
This should sharpen the LA focus.
Moving on somebody will have to get deputyship to handle ongoing care fees, this will require a formal statement of his incapacity.
Thank you for the reply, sorry but as I do not understand about "courts" would this be the court of protection? I will find out the details of the director of finance and email them.
Re "formal statement of his incapacity" at present this is only for health/welfare.........
This is a minefield for me at the moment, I appreciate the help I am getting, I know I will need legal advice, I need to be sure that I am getting the "correct" advice, I feel that if I do not know the right questions to ask? will I get the right legal expert to help me.....
Courts are groups of people presided over by magistrates or judges that make derisions.
Different courts have different powers ranging from the magistrates' court to the high court and court of appeal.
The court of protection is a court with powers to make decisions for people who are incapable.
Not sure what court the LA would appeal to, maybe the county court to get a CCJ (county court judgement)
Application for deputyship would need a completed >>>COP3<<<
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@MumblesPat
Answer to last part of your post
There are two organisations which should give you the chance to explain your problem to a suitable solicitor free of charge before you decide to instruct anybody:
https://sfe.legal/ .
https://societyoflaterlifeadvisers.co.uk/ .
Answer to last part of your post
There are two organisations which should give you the chance to explain your problem to a suitable solicitor free of charge before you decide to instruct anybody:
https://sfe.legal/ .
https://societyoflaterlifeadvisers.co.uk/ .
If he is assessed as still having capacity to manage his finances then you won’t get anywhere with the Court of Protection. In that case, if he still won’t agree to sell, you are probably left with TOLATA - so get legal advice in any case.
Thats why I think you need to challenge the assessment of capacity. @MumblesPat Just because the SW said he had capacity dosnt mean it is written in stone and another assessment can change this.
Yes, you can go down the TOLATA route, but I dont think it will solve all your problems - there will still be the problem that he wont pay the care home fees. If you can get someone else to assess his capacity and they say he does not have capacity to manage his finances, that will solve all your problems.
True, but arguably that’s not MumblesPat’s problem - the LA would have to deal with it. As long as his share of the proceeds of sale are deposited in his name, she has discharged her responsibility. It’s not that I disagree with you that the capacity assessment should be revisited - that clearly is needed - but if the outcome doesn’t support an application to the Court of Protection , for MumblesPat to get hold of her money reasonably quickly TOLATA will likely be the best route.
Well yes I agree @Veritas - it hinges on the likely outcome of a re-assessment of his capacity to manage his finances, but OPs description of what happened when his capacity for managing his finances was made make me feel that if this were reassessed it is highly likely that he would be found not to have capacity.
If his re-assessment of capacity demonstrates that he does not, in fact, have capacity to manage his finances and the person who assesses it is willing to sign the COP3, then @MumblesPat can apply for deputyship which is likely to be a simpler and quicker route (she can request fast tracking)
So not answering questions and changing the subject leads a social worker to believe someone has the capacity to run their own finances despite being in residential care because they lack capacity to decide where they live? Sounds as though the social worker lacks the capacity to do their job properly!
Who is the best person to get to do reassessment ? if he still will not agree? also as you said this person has to agree to sign the COP3.
My concern is that he will still not answer any questions as he did with SW I know him better than any one else.........he is very angry with me "for putting him in the home" he only wants to come home, so how is the reassesser to decide if he still refuses to answer questions as before?
Thank you to all persons for the replies.
Several people on here have used an Independent Social Worker to assess capacity and sign a COP3 form in order to apply for deputyship. You would have to google them to find out who is in your area.
Not engaging with the assessor and talking about something completely different is usually taken as a sign of lack of capacity.
If the Independent SW still thinks that he has capacity to manage his finances you can still go down the TOLATA route.
Not engaging with the assessor and talking about something completely different is usually taken as a sign of lack of capacity.
If the Independent SW still thinks that he has capacity to manage his finances you can still go down the TOLATA route.
Thank you, I know I am only trying to help him to have the best life he can, but so far finding it very difficult to accept that he has to be "locked up in a mental home" as he puts it.
Any person on the list I previously posted
https://forum.alzheimers.org.uk/threads/sale-of-2nd-property.130394/post-1839469 .
You may find it hard to find somebody, several clinicians are reluctant to get involved, especially if they see any risk of a challenge, they don't want entangling in a court case.
The LA social worker who has assessed capacity if asked to sign an edited COP3 stating capacity will most likely say ' we don't do that'. Personal choice, LA policy, or condition of employment I don't know.
Your best bet could be an independent social worker
Expect to pay £100 to £200.
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