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selling property for MIL, no Power of Attorney. What can we do?

(17 Posts)
yellowflags Wed 16-Nov-16 13:54:10

PIL have moved into a care home and are selling their house to cover ongoing costs. They need 24 hour nursing care, so the costs are high. We need to sell their house asap.

FIL has MS and MIL has dementia. FIL has 'capacity' and all their finances are in joint names. We have agreed the sale but the estate agent is now telling us that we need to have Power of Attorney over MIL's finances in order to sell the house. Obviously, we can't do this as she is unable to sign the forms.

(We are arranging POA for FIL, but that's a different story)

PIL are married. Can FIL really not take over his wife's financial affairs? What can we do?

Needmoresleep Wed 16-Nov-16 14:58:17

The EA is probably right. You can do a POA yourself - download the forms off the OPG website. Are you sure your MIL lacks the level of capacity needed?

Start with this guidance

www.gov.uk/joint-property-ownership/selling-when-an-owner-has-lost-mental-capacity

Then perhaps consider having the conveyancing done by a firm which also offers a service supporting applications for guardianship.

Ginmakesitallok Wed 16-Nov-16 15:00:53

Yes they are right unfortunately. Fil can't act on behalf of mil without poa or guardianship.

yellowflags Wed 16-Nov-16 15:22:21

Thanks (oh shit)

yellowflags Wed 16-Nov-16 15:41:56

Sorry ... follow up: do you have any idea how long it might take to get an answer from the Court of Protection?

thank you so much for your replies.. this is so fucking hard.

Sosidges Wed 16-Nov-16 15:45:41

Do not spend money on PoA until you have established whether your MiL has the capacity to understand,what she is signing. Part of the form requires a witness to swear to this effect. I would call the Court of Protection to find out how you stand legally, as I believe that they will need to step in to protect her interest.

Sosidges Wed 16-Nov-16 15:46:59

I would also call AGE UK . They are really helpful and have leaflets on every scenario.

yellowflags Wed 16-Nov-16 15:50:01

thanks, that's a great idea

mumblechum0 Wed 16-Nov-16 15:52:19

Your MIL can not make an LPA if she's already lost capacity I'm afraid. Your FIL/DH can make an application for a guardianship order which will cost in the region of £3k and take at least 6 months to be registered, probably longer. After that, the attorneys will need to manage your MIL's affairs and account to the CoP for the money.

Needmoresleep Wed 16-Nov-16 17:53:27

Sosidges. There is an enduring MN belief that obtaining a POA costs money. This is wrong. You can do it yourself quite easily with lots of guidance on the OPG website.

The issue is capacity.

I have linked to the Court of Protection guidance. This may take a while. OP could phone them for more information. If she needs money for care costs now there is scope for Social Services to lend against the value of the property under some circumstances. The care home may have ideas.

However as OP will now be able to confirm. So much easier to get those POAS in place in time.

Sosidges Wed 16-Nov-16 20:44:27

Even if you do it yourself it is £110 for each one.

Clayhead Wed 16-Nov-16 20:56:13

We did our own POA using the website but that's still £440 for both of them for both of us.

yellowflags Wed 16-Nov-16 22:31:38

I have been talking about poa for years. Dh, mil and fil were all hugely resistant. Didn't want to think about it. I should have done more research. It never occurred to me that a married spouse could not manage the affairs for his or her ill partner without changing legal status.

mumblechum0 Thu 17-Nov-16 08:41:05

I agree that it's possible to do an LPA by filling in the forms on the OPG website, it's recently been made much more user friendly.

However, applying for a guardianship order is a much much more complicated and time consuming matter and the fees are far higher.

ZaZathecat Thu 17-Nov-16 11:28:46

The LPA can be free if they are in receipt of certain benefits, e.g. Guaranteed Pension Credit.

Needmoresleep Thu 17-Nov-16 11:41:50

Sosiges. Sorry, I had thought you meant using a lawyer to draw up a POA, which people regularly come on here and insist is required.

That said, when you are talking about self-funding care home fees or even selling a property, I would argue that to not get a POA for the sake of £110, is very penny-wise pound foolish.

Indeed I suspect the process has been made as simple as possible in order to allow people access to access without having to go to a lawyer.

OP, its frustrating isn't it. One of the reasons I post. My DB was very resistant, and at one stage persuaded my mother not to even grant a limited POA which would have allowed me to manage a rental property without me having to obtain her signature each time.

For anyone reading, it is worth trying to get a POA in place. The wisdom here is that people in authority are good at persuading the elderly. DM's priest helped. But GP's or someone in uniform. Or one of their peers.

My DB was also not keen. However I first suggested that rather than listen to me, which he wont do, he identified a friend from law school who now specialised in probate, and took him out to lunch to ask about the most common problems when supporting a parent. I also reminded him that I had no spare cash so if he opposed a POA he would need to guarantee he could support my mother for up to a year in a nursing home, say in the even of a major stroke, whilst a Guardianship order was put in place. I think it is natural for people to assume everything will be OK, and there is no need to look at the worst that could happen. But you do.

GloriaRevolution Sat 19-Nov-16 18:55:23

I have not posted for a while and since then unfortunately FIL has died, but we were in this situation up until that point (i.e. no POA and looking at the Deputyship with the OPG route because it looked like he needed care home fees to be paid from equity from his house). FIL not interested in POA whenever it was discussed when he had mental capacity.

Just from my research as far as it went -

Our solicitor suggested that of all the deputyships she has done she has not known the charges for any to be turned down as a legitimate expense from the OPG - so - whilst it is a cashflow thing before the house is sold - it is possible to pay for the legal fees out of the sale of the house when that happens (if that saves you time / stress etc) - BUT - please check that - I am not a solicitor nor work for the OPG.

Phone the LA and the OPG for guidance - I believe they can be helpful.

I feel for you - it is a stressful situation and I think there is an argument for a massive sticky about POAs on this thread. DH and I are are late 40s , in pretty good health , no immediate problems but we are putting ours in place (both Financial POA and Health and Welfare) to stop DCs having to go through this .

I am sorry if that is not an uplifting post but possibly a couple of things to look into exploring.

Gloria

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