Sale of 2nd property

[nitram]

I would point out that social workers do not have a legal right to decide who has capacity for what,

Social workers can sign a COP3 legal assessment of capacity

...
...
The practitioner may be a registered:
– medical practitioner, for example the GP of
the person to whom the application relates;
– psychiatrist
– approved mental health professional
– social worker
– psychologist
– nurse, or
– occupational therapist
who has examined and assessed the capacity of
the person to whom the application relates.
...
...

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/958044/cop3-eng.pdf

 

[SeanPat]

The LA will regard the money owed for care as a debt that can only be paid by sale of the house, if your husband has capacity and you agree to the sale they could try to force him to sell through legal action.

The effect on you would be your getting your share of the sale proceeds.

The LA will get the house sold one way or the other, either court action if he is deemed to have financial capacity or through an appointment of a deputy if he does not, in which case If nobody else applies for deputyship the LA will.

You really need legal help to sort this out, first of all deciding whether or not he has sufficient financial capacity to sell the house.

Just got off phone to A, phone every day to offer some comfort. A is very angry about being locked up in a "mental home by B" this is one of the usual accusations..........it is really upsetting.

 

[jennifer1967]

Just got off phone to A, phone every day to offer some comfort. A is very angry about being locked up in a "mental home by B" this is one of the usual accusations..........it is really upsetting.

can you divert that to it was the doctor/ nurse/ anyone but you that has placed him there for him to get better. and not you.

 

[Bod]

Just got off phone to A, phone every day to offer some comfort. A is very angry about being locked up in a "mental home by B" this is one of the usual accusations..........it is really upsetting.

Don't ring everyday, Let him settle in for at least a fortnight, maybe longer, by all means phone the staff to hear how he's doing, provided they don't tell him you've called, that would upset him.

Bod

 

[SeanPat]

can you divert that to it was the doctor/ nurse/ anyone but you that has placed him there for him to get better. and not you.

I have tried and explained that he is only there for a while until he gets better but he does not accept that he is there over four months now and has not settled down.

 

[SeanPat]

Don't ring everyday, Let him settle in for at least a fortnight, maybe longer, by all means phone the staff to hear how he's doing, provided they don't tell him you've called, that would upset him.

Bod

He is there over 4 months and he has not settled when my mobile is on he is constantly calling me, I try to comfort him and say he is only there until he gets well again but it does not work.

 

[Veritas]

Help happens if as joint tenants of property one party had capacity and may not agree to the sale of the property which needs to be sold to fund care and is required by the other owner to live on?

Paying for care home fees in England

Paying for a care home can be expensive, but you may be eligible to financial help from your local authority. In some cases, you might be able to get financial support from the NHS.

www.alzheimers.org.uk

You need proper legal advice, but one possible avenue to pursue is what is known as TOLATA - the legislation dates from 1996. Essentially, given the circumstances you describe, it seems to me you would stand a reasonable chance of getting a Court Order for the property to be sold without his consent, regardless of whether A has capacity, or indeed his diagnosis or current iving arrangements. You jointly own the property (I'm assuming this is fully documented), you need access to your share of the equity (and so does he now that he has care needs), and it is not anyone's main residence. I would also add that empty/unused properties inevitably deteriorate, so it is losing value every day as well as costing you money to run.

I have no idea how long the process would take but it may well in the end be quicker than going through a deputyship process, especially if the social workers are not co-operating at the moment on the capacity issue.

 

[MartinWL]

Social workers can sign a COP3 legal assessment of capacity

...
...
The practitioner may be a registered:
– medical practitioner, for example the GP of
the person to whom the application relates;
– psychiatrist
– approved mental health professional
– social worker
– psychologist
– nurse, or
– occupational therapist
who has examined and assessed the capacity of
the person to whom the application relates.
...
...

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/958044/cop3-eng.pdf

Point taken but that's not actually law. I always read what the Act itself says and it does not lay down how capacity is assessed. It would be a hurdle to overcome so I can see that it would be easier to get a GP etc involved.

 

[Veritas]

Just to add, you are not responsible for his care costs. The house you are living in should be disregarded in the financial assessment, and if you are dependent on him for some of your living expenses that has to be allowed for as well. What the LA could and is likely to do, however, is put a charge on A's share of the equity in the second home. This would strengthen your case for forcing a sale, of course.

 

[canary]

Point taken but that's not actually law. I always read what the Act itself says and it does not lay down how capacity is assessed. It would be a hurdle to overcome so I can see that it would be easier to get a GP etc involved.

You want to argue with the Court of Protection about what evidence they will or will not accept?!
"may" is used here in the permissive sense - it is a list of people who you are allowed to used.

 

[Shedrech]

Hi @MumblesPat
You really are between the rock and hard place

May I gently suggest that you let calls go to answerphone (maybe record a calm message that eg your phone has an intermittent fault right now and you will respond when you are able ... a fib, I know, but simply to give you breathing space)

speaking with him every time clearly isn't reassuring him and it's not helping you ... it is, though, reinforcing this demand in his mind and that you will be at his 'beck and call' ... please try leaving him be and let the staff support him ... I appreciate that's tough on you as of course you want to comfort him, but right now you yourself need some breathing space to be able to rest and settle your own thoughts

Admiral Nurses are there to support carers, you could talk with them in real time when it suits you

Admiral Nurse Dementia Helpline

Call or email our Dementia Helpline/Alzheimer’s Helpline for reassuring and practical advice from our specialist team of Admiral Nurses.

www.dementiauk.org

 

[SeanPat]

You need proper legal advice, but one possible avenue to pursue is what is known as TOLATA - the legislation dates from 1996. Essentially, given the circumstances you describe, it seems to me you would stand a reasonable chance of getting a Court Order for the property to be sold without his consent, regardless of whether A has capacity, or indeed his diagnosis or current iving arrangements. You jointly own the property (I'm assuming this is fully documented), you need access to your share of the equity (and so does he now that he has care needs), and it is not anyone's main residence. I would also add that empty/unused properties inevitably deteriorate, so it is losing value every day as well as costing you money to run.

I have no idea how long the process would take but it may well in the end be quicker than going through a deputyship process, especially if the social workers are not co-operating at the moment on the capacity issue.

Thank you for the reply.
Yes everything is fully documented.
What is TOLATA?

 

[SeanPat]

Just to add, you are not responsible for his care costs. The house you are living in should be disregarded in the financial assessment, and if you are dependent on him for some of your living expenses that has to be allowed for as well. What the LA could and is likely to do, however, is put a charge on A's share of the equity in the second home. This would strengthen your case for forcing a sale, of course.

Thank you for the reply.

 

[Veritas]

Thank you for the reply.
Yes everything is fully documented.
What is TOLATA?

Can a Jointly Owned Property Be Sold by One Owner? | SAM Con

We answer how Can a Jointly Owned Property Be Sold by One Owner. Forcing the sale of a jointly owned property & the different outcomes at court.

www.samconveyancing.co.uk

There's loads of stuff on the internet about this legislation, some of it very technical and dense, but this link would be a reasonable starting place. As I say, you do need specialist legal advice on your particular situation, but it is certainly worth asking the question about using the TOLATA route.

 

[canary]

I find it difficult to believe that he does not have capacity to decide where he lives, yet has capacity to manage his finances. Irrespective of whether you manage to force the sale of the house, I think there are going to be major problems with him paying for his care home fees.

From what you have said about how his capacity was assessed I really do think it is worth getting a second opinion about his capacity to manage his finances - possibly you would have to pay for a private Social Worker to do this, but it may well be worth it. If he/she decides that he does not in fact have capacity they may well be willing to sign the form needed to apply for Court of Protection deputyship (COP3), so do check at the beginning. A private SW would certainly do this.

If you can get deputyship then you will be able to use his savings to pay his care home fees and you will also be able to sell his half of the house (you do have to request this at the same time you apply for deputyship). This might be a more straightforward route.

 

[MartinWL]

Can a Jointly Owned Property Be Sold by One Owner? | SAM Con

We answer how Can a Jointly Owned Property Be Sold by One Owner. Forcing the sale of a jointly owned property & the different outcomes at court.

www.samconveyancing.co.uk

There's loads of stuff on the internet about this legislation, some of it very technical and dense, but this link would be a reasonable starting place. As I say, you do need specialist legal advice on your particular situation, but it is certainly worth asking the question about using the TOLATA route.

Very interesting. I've only read that linked page, but it would seem that the original bintention of the parties is very relevant to a forced sale. I don't think we know the background as to what was intended when the house, now empty, was bought.

 

[Veritas]

Very interesting. I've only read that linked page, but it would seem that the original bintention of the parties is very relevant to a forced sale. I don't think we know the background as to what was intended when the house, now empty, was bought.

No, we don’t - that’s why MumblesPat needs to take specialist advice based on full information. My point is that it is a possible approach to resolving her problem.

 

[SeanPat]

Very interesting. I've only read that linked page, but it would seem that the original bintention of the parties is very relevant to a forced sale. I don't think we know the background as to what was intended when the house, now empty, was bought.

The property was put up for sale early 2021 signed by both parties agreeing to sell all documented. The property was our previous home.

 

[Veritas]

The property was put up for sale early 2021 signed by both parties agreeing to sell all documented. The property was our previous home.

So your husband has - in effect - withdrawn his consent subsequently? In a context where there is at least some doubt about his capacity to make such decisions? You need that legal advice ASAP, but to my mind this further strengthens your position in terms of seeking a Court Order allowing you to sell.

 

[SeanPat]

So your husband has - in effect - withdrawn his consent subsequently? In a context where there is at least some doubt about his capacity to make such decisions? You need that legal advice ASAP, but to my mind this further strengthens your position in terms of seeking a Court Order allowing you to sell.

Still hoping he will agree to sell as the sw said he had capacity re finance/property, if not then I will
have to get legal advice.
What happens if having been assessed as having capacity re finance/property he still refuses?

He had decided to sell before he had been diagnosed with Dementia.............