Joint will changed when one doesn't have capacity and sharing assets and money before the persons have died

[EclipseoftheHeart1]

This is for a friend.

Her parents are mid 8os and both in reasonably good health and physically active. However one now has dementia.

A joint will was made before he lost capacity and daughter 2 was made executor.

Since then the will has been revised, daughter 1 has power of attorney. The house has been sold and the mum is vague about the will to daughter 2. No one knows what the revisions to the will are? Daughter 2 doesn't know if she's still executor.

Daughter 1 is talking about sharing out assets already to get in the 7 year inheritance tax rule whilst parents are still alive.

The plan is for the the parents to move unto a much cheaper retirement flat near daughter 1.

1. can a joint will be amended without one partner having capacity and with only mum and poa present?

2. if so can the executor be changed? Dad was adamant daughter 2 was executor

3. can money be dished out now with mums consent but obviously not dad's?

4. there could be in total 700 hundred thou with pension and hoise sale to sustain them further into old age.

5. dad is OK living at home but is deteriorated.

6. who safe guards dad and all the assets when mum is now too old to be care anymore and trusts daughter 1 over everyone else?

First and foremost:
Can you confirm you mean 'joint will' and not 'mirror wills'.
I have heard of joint wills here before but they are v unusual (if they even exist??)

There are lots of questions to start with.

I know about mirror wills, where they, essentially, say the same thing but I thought everyone had their own.

You don't just lose capacity on the day a diagnosis is dementia. People are diagnosed at different stages so he may have been well enough to draw up a new will before he deteriorated (or he may not have been).

IHT rules are for tax. There are also rules on deprivation of assets - giving stuff away when you may need a care home. You need to not fall.foul of that.

It seems that this is one for your local.lawyer. I'd think a good starting point would be the person who drew up the wills you do know about or the Power of Attorney. Its possible they may have used the same person

Dad with dementia would not allow this wife of daughter 1 be his power of attorney.

He has assets in his name only (some)

Apparently it's definitely a joint will

There are lots of strange things going on here.

A joint will is very odd indeed. Once it has been made then it can only be altered if both people agree to it.

So usually there are two, mirror, wills.

"A joint will was made before he lost capacity and daughter 2 was made executor.

Since then the will has been revised, daughter 1 has power of attorney."

Did he still have capacity when the will was altered? This is crucial. If he did not have capacity at the time then daughter 1 could only rewrite the will if she got a court order allowing her to do that.

1. "can a joint will be amended without one partner having capacity and with only mum and poa present?"

To do this the person with the PoA would have to apply to the Court of Protection for an order along with medical evidence that the dad lacked capacity.

They cannot just write a new will on their own.
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1. "if so can the executor be changed? Dad was adamant daughter 2 was executor"

As above, the PoA would need to apply to the Court.
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"Daughter 1 is talking about sharing out assets already to get in the 7 year inheritance tax rule whilst parents are still alive."

1. "can money be dished out now with mums consent but obviously not dad's?"

Any assets that are purely in mum's name (eg if she has a bank account in her own name) then mum can do that with her own assets.

Any joint assets and it's a different matter. The PoA has a legal duty to act in the best interests of the person concerned. The LPA may have conditions in it about what the PoA is allowed to do.

However, I'm not sure that giving away assets would in any way be considered in their best interests. Also, if either of them were likely to go into care, which seems not unreasonable, then the local council may come after the PoA for deprivation of assets.
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1. "who safe guards dad and all the assets when mum is now too old to be care anymore and trusts daughter 1 over everyone else?"

If there is a LPA for dad then it will be whoever is named in the LPA. If the person is acting beyond their powers or not in the best interest of dad then you must report this to the Office of the Public Guardian (this is the office that the LPA should already be registered with.

Here is how you can report any concerns:

https://www.gov.uk/report-concern-about-attorney-deputy-guardian

There's no such thing as a joint will.

They probably have mirror wills whereby each says the same thing. If that is the case they are seperate wills that happen to be the same, but either can change their will at any time without the other (if they have capacity).

@Another2Cats.. That's very helpful thank you

There is a no poa over dad he refused to have wife end daughter 1.
What's too stop wife and daughter one selling his assets or moving any money he has in a separate bank?
Who would know?

And monies from a house sale? Again how could that be divvied up!
No he did not have capacity when the will was altered.

According to this you can't have a joint will in England
Can I make a joint Will with my partner? – Lawpack

@TeenToTwenties 😞.

Thanks.

So mirror wills can be changed as is each person's own will.
But one person's separate assets should not be sold but in reality there is little to stop them

Anyone can change their will at any time provided they have capacity.

There is no such thing.

Ok it looks like it must be a mirror will.
So in that case does it come down to how they hold the house?

The means of preventing an attorney acting contrary to the best interests of the donor is to report the attorney to the OPG as stated by PP.
The OPG investigates and where wrongdoing has been found (on the balance of probability, so the civil evidence standard rather than the much higher criminal threshold of beyond reasonable doubt) the Public Guardian will usually apply to the Court of Protection to revoke the LPA removing the attorney and often appointing a Professional Deputy (solicitor) to replace the attorney and pursue any misappropriated assets.

Thanks @JennyMule

At the moment it would be argued any sneaky business is in the best interests of the both parties and mum is still compensmentas.

So technically she's acting in her and her family husbands best interest.
However the balance of power has shifted away from the fair members of the family eg dad end dd2 to mum and dd1.

It sounds as if good legal advice is needed urgently. If paying would be impossible, Citizens Advice would be a good place to start.

As a totally unqualified person who had PoA for my parents, I understand the following.

1. No one can change a Will except the person who made it. Someone with Power of Attorney cannot do this. I'm assuming that there are actually two individual wills.

2. As a Will can only be changed by its owner, the Executor cannot be changed. An Executor can 'renounce' or refuse his/her role, however.

3. A person with capacity can do what they like with their money (up to a point, keeping within the law). Joint assets, or assets belonging to someone who no longer has capacity, can be gifted, in certain circumstances, but any gift/disposal of assets must be in the donor's interest and would generally need approval from the Court of Protection. The exception to this is 'customary gifts' such as for family weddings or birthdays, of a size that would be customary for the donor.

4. A house can be sold by a person with Power of Attorney. It would be very wise to take legal advice about such a valuable asset. See point 4.

5. A person with Power of Attorney must act in the 'donor's' (person on whose behalf he/she is acting) best interests. Eg should his home be sold provision must be made for appropriate housing and the payment for it.

6. If there is no Power of Attorney for the father no decisions can be made on his behalf. The best thing is for someone to apply to the Court of Protection to become a Deputy, which is a harder way to have similar powers to an Attorney.

Obviously we don't have the full picture, but on the face of it, from what you say, it's possible that the mum and daughter 1 may not be planning to act in the dad's best interests, and exclude daughter 2 in case she disagrees. Daughter 2 needs to find a solicitor in order to ensure that her father's interests are not at risk of being sidelined. She may need to apply to the Court of Protection if there seems to be a Power of Attorney which is being misused, or if she thinks someone who has applied to be Deputy will not look after her dad's interests.

I stress, I have no relevant qualifications and may have misunderstood one or more points. A qualified lawyer would give much better and more reliable advice.

@amicissimma good clear post thank you.
Personally I totally agree, unfortunately it would be argued that they are acting in his best interests and anyone getting in the way is prohibited mum getting the support and environment she also needs.

However a lot of money I'd about to be released and only one dominate family member in control. I guess another thing she can try is getting mum to also alow her to be her poa.

It seems very odd to be talking now about inheritance rule and giving money away when both of them are still very much alive and there is no idea how much they will need

It sounds difficult.

However, the way people get away with depriving others of their property and rights in situations like this could be, is that no one takes it upon him/herself to contact the Court of Protection (probably supported by legal advice). The Courts can't know what might be going on unless they are told. It's a daunting prospect, particularly, as if often the case, the facts aren't very clear (deliberately clouded). But there's no penalty for just asking advice.