Power of attorney, person already has dementia can you get po

[Inthesummertimewhen]

Can you get pow over them?.. Strange situation, house is in fil name but he has dementia and no pow over him.. Mil is fine but sil has pow over her

Sil and mil want to sell the house but apparently a conveyor needs fil to say yes and if they know he has dementia it won't sell... Can pow be obtained please, does any one know?

If your dh finds it suspicious then he should absolutely act in his dad's best interests, he can intervene, what burden is his sister put under.

They have been looking at small special retirement flats.

Do NOT let them buy a special retirement flat. Most of these flats have whopping service charges and are very, very hard to sell. Resident dies and the estate are lumbered with a flat they can't sell but still have to keep paying service charges. They usually don't allow letting as well so you are absolutely stuffed. It is a shockingly abusive situation. Google about this for more information but here are a couple to get you going

https://www.theguardian.com/money/2021/mar/28/i-cant-sell-mums-retirement-flat-and-the-charges-are-mounting-up

https://www.thisismoney.co.uk/money/news/article-10182583/The-retirement-home-scandal-wiping-life-savings.html

Can they sell the house without his consent?

Look at the link I posted above about the Court of Protection. It answers this question. Yes you can in principle but you need a court order so you need to make a court application and satisfy the court that it should be allowed.

Yes, I did notice this when I sent link earlier to offic3 of public guardian, that you can apply for one off decisions which may well be helpful in this caecrwthe4 than all the complete hassle and expense of ongoing deputyship . The issue is then about if there are also funds the family need to access to support other costs in fathers name

BUT a solicitor is still needed. If house is in FIL as sole tenant , MIL needs o get some sort of legal claim in house as soon as possible. Theoretically if house is sold then proceed are entirely FIL without that ownership being established, and local authority could go after proceed (or at least half) to pay for care. It MAY actually be better if poisobevto stay put and not move and MIL to have claim on house as her permenant residence. Devil is in detail here as I’m not explicitly clear from OPs responses if the house is truely in her FIL sole tenanancy - would be very odd after such a long marriage.

Because it has to go through a change in land register . That is a legal process that states ownership of house . The person in land register has to sign at “completion” to pass the title deed to new owner. That a process as old as the hills. It’s how you prove who owns house and land.
it is a criminal offence to fraudulaemtly sign such a document, and no conveyancing solicitors involved in sale would allow such a thing!

conveyencing solicitors will normal only take instructions form the person whose name is on deeds in first place anyway, as they’ll be responsible to pay their fees, they’d want to see a LPOA or deputyship or court order for MIL or SIL rocking up trying to give instructions.

How would a conveyancing solicitor even know fil isn't 100 % though?
They go to sign, he may sound OK.. How would they know?

If his name is on the deeds, the house cannot be sold without consent. Best thing to do is get a solicitor to visit them, they'll assess initial capacity by having a chat, asking him certain question about things like the news, politics. If that goes well, then a solicitor would support a Power of Attorney. If not, then it has to go through Court of Protection, which sadly can take a while.

I used to be a legal secretary for a solicitor specialising in Wills, Probate and elderly client matters, so this was certainly the case a few years ago.

Thank you everyone for this input.

@Iliketulips
I think he's still very sharp on all that stuff

OP, now realised your FIL is not in care home yet. It is possible then that he may have mental capacity to do LPOA, but if he doesn’t trust SIL or your dh then it’s not in theory going to help. Would he trust your MIL - why does it need to be SIL, or even a solicitor. Th3 family may need to push him hard to explain the impact of him not doing this about your mother not being able to support him properly or herself. It is not uncommon with dementia for people to be paranoid and suspicious and need a “good talking to “ by someone they trust or a GP, care worker to explain the implications of not doin* it,

BUT, becuase he’s not yet in a care home yet, this is going to get more complicated. Almost certainly there will be a point when he HAS to go into care home or nursing home. Agitation and violence is not unusual - and safety of himself and others comes into play where DOL order (or its new equivalent) is mandated and that can’t be provided at home. In worse (or in our family’s case- best) case the person may be detained under mental health act and end up with section 117. This is actually a good thing as does direct resources better and ensure more funding support. Care homes without a nursing element having been agreed to be funded by nhs, can be £1500-2000 per WEEK. whilst his pension can cover some of that, it will have a massive impact on MIL and her future, especially if house only in FIL name.

Frankly it’s a bloody mess if that’s the case. She’ll constantly need to be making decisions on his care and funding , so in that sense it is better probably to go full deputyship route if he can’t or won’t sign a LPOA.

He will have to sign a contract and transfer, and there would well be other documents. It wouldn't be a good idea to get him to sign these knowing he has limited capacity. If he has to go into see a solicitor to sign the paperwork, he's wll have to be able to go through the niceties, understand what's been said to him and respond appropriately to what's spelt out in the contract. I think most people moving would also have relevant questions, so that's another thing. Also, is the new property intended for both of them or just your DM. If the latter, solicitor will want to know from him where he plans to go as they'll have to give vacant possession. If the property will be in joint names, that'll be another lot of paperwork for him to understand, acknowledge and sign.

@Iliketulips I think sil is worried about potentially having to wait if capacity is an issue so that's why they are looking to sell with an on line solicitors.

If a solicitor makes a house call then fil will ask why he is there, he will be told its to assess him with a view to selling his home, all he needs to do is say no, I'm not selling. I haven't ever met a solicitor in the last 10 years who assesses capacity, it's too risky and they would probably ask for a medical assessment, proof of capacity, proof of poa or guardianship.

It still needs his agreement, consent, proof of ownership and signature.

We did it online, after my mum's diagnosis.

@Iliketulips yes both moving into small retirement flat.
. It's all been decided fast and moving fast... I'm a removed spectator to a degree. Dh doesn't get the potential for financial abuse here, he believes sil is genuine helping.
I think it's both but I can't really start to instigate anything without dh on board... I would be doing all the above if this was my parents and one of my siblings... If all this goes through and mil and fil are happy /brilliant.

But that also means a lot of money will be sloshing about and how does that get protected not only from sil but anyone?. There will be 100s of pounds loose.

That is possible, but it is illegal! You would also need to have “bribed” the witnesses that need to witness his signature into agreeing he is completely ok. And then they’re also committing fraud. And those witnesses can’t be family members. But hey, if you all want to break the law you could try.

a house could take months to sell. You start process when FIL is in good place and reasonable competent to agree and sign and witnesses to be happy he knows what he is doing. But we all know that dementia progression is not linear. People can go downhill steeply and then appear to improve, not to get even worse rapidly. He may simply not be able to sign a half way decent signature or appear vaguely mentally capable by time he needs to “sign” the deeds in 9 months or 12 months time

..really, you don’t want to go there with committing a crime. Honest.

@Dartwarbler.. I absolutely definitely don't want to break the law but this isn't my gig.

@Dartwarbler

Anyone can witness a signature, they can ask some random neighbours they don't know well to sign, again how would anyone know.

Then you contact their bank, adult social services safeguarding team, the opg and elder abuse, your dh can apply to look after their finances but tbh it sounds as if he would be safer having a court appointed deputy.

Sorry, should say this scenario is NOT that uncommon. Part of why you have a process to apply for emergency court order to go through to completion because someone has suddenly become mentally incompetent during a house sale. For all sorts of reasons including other mental illnesses etc.

For gods sake get a grip.

Are you seriously thinking that you can sell a property in the sole ownership of an elderly person who (according to you) is "still very sharp" by fraudulently doing it without his consent via "on line solicitors"?

The purchaser will have their own solicitors who - you know - might just be interested in whether they are purchasing lawfully or a party to a fraud. Solicitors are subject to considerable regulation concerning money laundering.

Do you not have the vaguest clue that 1. the chances of getting away with this are almost zero and 2. IT'S A CRIMINAL OFFENCE. Fancy spending time in jail?

This would be almost every kind of fraud offence fraud by false representation; fraud by failing to disclose information and fraud by abuse of position.

I believe that the maximum sentence for fraud is 10 years in prison.

You all crack on.

Yes if he has capacity to make that decision. Capacity is decision specific. Someone may have capacity to make a simple decision but not a more complex one. They need to be able to understand implication, weigh up, communicate. Look at mental capacity act. You’ll need an assessment. Obviously he can have capacity and still say no.

Op, 2 fundamental questions you’ve not answered that I can see

1. is the house in land register under your FIL sole tenenacy? Have you checked (£3 and a few hours to do that)
2. is your FIL aware, remembering and agreeing to MIL selling the house. Is he engaged in that, involved in that decision? Has he expressed where he would like to live?

@SirQuintusAureliusMaximus.
What a "robust" reply 🤣.
It's not me and not us doing all this.
This is why I'm interested in the processes!

Sil has surprised me.

I said the house is in both their names.. I think fil would ideally prefer to stay put but understands mil wants to move and why.

Fil isn't well enough I don't think to fight mil and sil however.