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Dad has dementia but 'presents' well - how do we stop him signing important docs?

(14 Posts)
gussiegrips Mon 10-Dec-12 00:36:45

Aye, I assumed the house would be in joint names. And, that Cory's mum's not embracing the presumed prognosis of her DH.

Thanks for clarifying - am going to read up on Scots law and see if it's different. It kind of vaguely comes into my work every now and then - hurrahforsocialworkersthatIhandstuffonto

hatgirl Sun 09-Dec-12 21:36:38

Hehe PenelopePipPop thanks for expanding on the brief points I made - I could talk for hours on MCA and best interests if allowed so I try and rein myself in a bit. OP approx 15 years is a long time to go without diagnosis - DF must be presenting very well?

PenelopePipPop Sun 09-Dec-12 21:23:43

The issue isn't whether they are married but whether they hold the property jointly or it is in the OP's Dad's sole name. If it is in his sole name and he now lacks capacity the only way anyone can take any decisions about it lawfully is to get appointed as a deputy by the CoP and then decide what would be in his best interests. If it is in joint names then the other holder of legal title can act, presumably in this case the OP's Mum. If it is in joint names I can't understand why the neighbour hasn't been targeting her too. However, from the scenario described above it doesn't sound like the OP's Mum will be keen to simply go ahead and sign.

It doesn't have to be Cory's mother who applies to the CoP. It could be Cory if she is sufficiently concerned. But as I said that is all a long way off. The primary consideration is clarifying the extent of her Dad's capacity. He may be capacitous and bloody-minded in which case there is very little anyone can do. Or he may have advanced dementia in which case no agreement he signs will be worthwhile. If the neighbour is warned of this now it will save a deal of trouble. Even if she isn't it won't change the fact that the agreement he signs will be voidable if it transpires he lacked capacity when he signed it.

Whatever happens there are no 'automatic' powers to make decisions on behalf of other adults in English law (there are some limited automatic rights to be consulted when a nearest relative is admitted to hospital under the Mental Health Act but that is about it) which was the only bit I disagreed with in your advice. Everything is decided on a case-by-case basis based on what is in the individual's best interests so we can't assume anything here.

gussiegrips Sun 09-Dec-12 19:46:19

But, Penelope - if a couple are married then aren't they automatically each other's next of kin? Wouldn't they be able to sign joint decisions on a joint property on each other's behalf? IYSWIM

It sounds like Cory's parents are not particularly concerned by their situation, so they are unlikely to be seeking CoP or any legal protection at all. Therefore, Cory's mother would be in a position of responsibility be default?

PenelopePipPop Sun 09-Dec-12 14:33:17

Claremarriott raises a good question - why are the builders not insured?

As for your Dad I think you need to spell the situation out to the neighbour, the likelihood she knows much about mental capacity law is low. If your Dad does not have capacity to sign this agreement according to the requirements laid down under the Mental Capacity Act 2005 and that is established before he signs anything then the effect of this is that it will be legally meaningless, regardless of whether or not his neighbour knew this. If you don't clarify his likely level of mental capacity in advance of signing the agreement the likelihood is it will still be voidable assuming he still lacks capacity i.e. worthless to her if your Dad or your Dad's estate were ever to sue her for damage to his property.

The Mental Capacity Act 2005 operates under a presumption of capacity i.e. we are all presumed to have capacity to make all decisions unless evidence is provided to the contrary. Capacity in the Act is always issue-specific, we can lose capacity in one area of life whilst retaining it in another, for example your dad might not understand the implications of the agreement his neighbour is asking him to sign but still be able to make capacitous decisions about medical treatment or where he wants to live and those would have to be respected.

To buy yourself some time therefore I would write to the neighbours saying you understand she wants him to sign a legal agreement, but since his mental condition is under investigation it is not appropriate right now. If she wants full confidence that any agreement he signs is valid then the only way forward would be for you to make an application to the Court of Protection which can either make a declaration that your father is capable of making the relevant decision (even if it is not the decision you think he should make - he is entitled to be bloody-minded!) or if he lacks capacity appointing a deputy to make the decision on is behalf. Gussiegrips is wrong, the CoP will not automatically appoint your mother to act as his deputy if he lacks capacity to make property or financial decisions, they might prefer to appoint you or another sibling or even more than one person to act.

Anything short of this will leave with her a legal agreement which could readily be contested in court should her building works fail.

This is the first step to buy you time from the annoying neighbour - it should at least get her to back off. Then you need to focus on clarifying what form your Dad's dementia takes and what impact this is having on his capacity to handle his financial affairs. After you've got a proper diagnosis would be a good time to see a solicitor and see how you can support your Mum and Dad with financial and property matters in the future. If your Dad has already lost capacity to handle property matters for himself then it will be too late for him to use a lasting power of attorney to appoint someone to act for him which means you will need to go down the Court of Protection route instead. But so long as the neighbour is off the case you will have some time.

Good luck, it is horrible especially when your Dad is so hostile too.

ClareMarriott Sat 08-Dec-12 21:52:39

Corygal

I don't understand why your neighbour should be asking your DF to sign forms if she has notified her household insurers that building works are being undertaken at her property and her builders have the required public liability insurance .

DeckthehallswithbowelsofMIL Sat 08-Dec-12 17:43:33

This sounds similar to my FIL and MIL has organised for DH to have power of attorney. If this property developer is targeting him when he is vulnerable it wouldn't hurt to tell her that you are going to contact Trading Standards or even the Police, even if you don't in reality. Some people are incredibly scheming, better to be safe than sorry.

hatgirl Sat 08-Dec-12 17:38:52

well hopefully it should be enough to get her to keep her distance, not a lot of people are aware of the MCA 2005 but it applies to everyone and ignorance of it is not a defence in law.

However, in reality if she has any knowledge about the the MCA 2005 she could still be cute and claim that she assessed his capacity at the time of signing any document and felt that on balance he fully understood what he was signing at that moment in time. I would hope that the onus would be on her to prove this.

On a similar subject it may also be worth dropping a polite letter to his solicitors if he has one stating that although your father is refusing to get a diagnosis and presents well you strongly believe that for X(whatever) reasons he may have an impairment of the brain or mind (the necessary definition in the MCA) that may impact on his mental capacity to fully understand/ make informed decisions about some legal matters, and you merely wish to make the solicitor aware of your concerns in the event that your father visits them to make any changes to legal documents.

The onus is then on the solicitor to use this information as they wish but ultimately they then need to ensure that they are satisfied that your father has the mental capacity in whatever legal matter they are dealing with for him before they do so. They can choose to ignore your letter completely if they wish but again it may offer your family some protection if they help him sign the house away or something! Generally solicitors are very aware of the MCA and are careful to make sure that they check the capacity of their clients if they have any concerns.

Corygal Sat 08-Dec-12 16:27:00

You are brilliant. Actually, I reckon he has got Korsakoff's, a specialist implied it was so when he was in hosp for something else last year.

I will tackle the neighbour. She works for a property developer, not a resident, and is crafty with it, so you can see why I'm worried.

hatgirl Sat 08-Dec-12 15:07:18

if he has been a heavy drinker for a long time it may be worth going to speak to his GP informally as suggested above to discuss the possibility of Korsakoff's or dementia?

In the meantime the Mental Capacity Act 2005 can offer some protection to people regarding signing legal documents if they may lack capacity in that area of their life, but have full capacity in other areas. You could try informing the neighbour in writing that you believe that your father lacks capacity in relation to signing any legal documents. Then if she does get him to sign anything she does not have any defence that she was unaware of this if whatever she has got him to sign needs to be challenged.

HoleyGhost Sat 08-Dec-12 11:22:54

Is there an Aunt or close family friend who could speak to your DM?

You are their child and they might still, all these years later, be in the habit of maintaining a united front.

pinguthepenguin Sat 08-Dec-12 11:17:05

A friend of mine who was concerned about her dad having early dementia went to his GP on her own and explained what was going on. The GP then wrote to the dad asking him to come in for a routine checkup, which the dad was happy to do as it came through post completely 'unrelated' to anything/anyone.
Maybe do that?

gussiegrips Fri 07-Dec-12 23:25:17

You need to speak to his GP.

Phone the surgery, get an appointment to discuss the situation. Preferably, with any siblings or helpful friends/relatives you have. The GP can ask them to come in, or could pop in for an assessment.

If he has dementia then your mum is his next of kin - so, any power of attorney decisions will pass to her.

As for the neighbour, could you pop in and ask her why she hasn't got the correct insurance adn why she's asking your parents to accept her risk? Give her the details of your parent's lawyer and ask her to pass any paperwork to them for advice before your parents sign?

Not an easy situation. Getting a diagnosis will open up all sorts of helpful avenues for your mum, as well as treatments for your dad.

<hug>

Corygal Fri 07-Dec-12 23:15:56

My dad, 75, has had some form of dementia since his mid-60s. Nutshell; we don't know which, as DM refuses to take him to the doctor, but it has progressed from absent-mindedness & losing his way locally to personality change (nastier) and inability to follow much of an argument.

Dad doesn't perform any everyday tasks as DM waits on him hand and foot, so one can't tell much about that. Problems get worse - a lot worse - with drink, which he does a lot.

Glitch; he comes across as very normal, indeed delightful, in conversation (unless you get the 2hr monologues).

Their neighbour, a property developer, is having major rebuilding done & keeps targeting Dad to sign docs to say he won't sue her if her builders damage their property. She hasn't got the right insurance.

How in hell do we stop Dad signing the papers? He is very resistant to any suggestion that he needs help ('resistant' = aggressive) and by law is perfectly compos mentis, despite the drink and dementia.

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