Problems with house sale

[Clappingforjoy]

Posting here for traffic as we are in a right pickle with selling my moms house that has gone into care.

You will need the court of protection if she doesn’t have capacity and you don’t have power of attorney. It’s not fast so I would forget your current sale.

As an aside, you can have power of attorney in place even if you don’t need it right now so, depending on your age and the age of your children, it might be worth putting it in place for yourself now so it takes away this as a problem for anyone else down the line.

Thanks pottering just to mention that we are gearing towards court of protection but it hadnt hern proved that she lacks capacity with the solicitor dealing with the sale saying that just because she has dementia it doesnt mean she cant sell her house and that if she remembers its been sold then it's okay.
However the home wont take responsibility and we cant get into the home to speak to our dm due to lockdown.
Will the court want a assessment of her capacity first

Also we will need her carehome fees eventually

A doctor can confirm she has capacity to sign a LPOA. Otherwise you need to apply to the court of Protection.
Probate is for after death.
The executor of the will doesn't come into play until after death.

Im advocacy worker in Scotland, the law is slightly different but the principles would probably be the same even if the process is different. Capacity is task specific so Ive seen people be deemed to have capacity for finances but not welfare etc. Legal and medical capacity are different. A solicitor could assess someone and decide they can take instruction where a doctor has said the person lacks capcity. If there is no power of attorney (the financial aspect of this would only come into play if the person is medically assessed as lacking capcity anyway unless stated otherwise in the paperwork). If someone is deemed incapable of making financial or welfare decisions by 2 doctors and no poa is in place then legally the only way that decisions can be made on their behalf is if someone (s) apply for guardianship. This can be a lengthy process and would require a solicitor, the person also has a right to oppose this and instruct a solicitor if the solicitor feels they have capacity to instruct (again there could be a situation where a solicitor feels the person does not have capacity to sign legal paperwork but does have the capcity to oppose an application for guardianship). Only then can any fiancial or welfare decisions be made on that person's behalf. I think the best first step is to ask a solicitor to assess if your mum has capacity to instruct them. Care home staff are not qualified to assess if someone has capcity it needs to be a doctor or a solicitor. If the solicitor feels they cannot take instruction then the only option is to apply to court to be allowed to make financial decision on their behalf. This is scrutinised by the office of the publix guardian and (in Scotland at least) taking 50% of the estate prior to death wouldn't be allowed. I hope that helps.

I always thought care home fee advice was to rent the property, use the income to pay the fees and then you retain the asset and thus any accumulation of equity. On the basis the rent covered the fees.
Just a thought.

Firstly you need to ascertain whether your mother has the capacity to make decisions about finances. The person who formally assesses this is likely to be a social worker.

If your mother lacks capacity, you may apply for Deputyship of finances through the Court of Protection. You cannot use Power of Attorney as your mother must have decided this and allocated you as her Legal POA when she did have the mental capacity to do so.

There is lots of information if you Google "Deputyship" with regards to this. It would encompass other financial decisions, and you would not be able to benefit from the sale until your mum passes away; it's still her money, whether she has capacity or not.

Before guardianship can get as far as court the person must be assessed as lacking capcity by 2 doctors (in Scotland a specially trained social worker must also assess the person and write a report for court, not sure if the this is the same in England). Unless the buyer is willing to wait I would assume that the current sale will not go through. With water rates etc once guardianship is awarded and the house sold any bills etc can be taken back from the estate. I would also contact an advocacy worker on your mum's behalf as they will ensure that her views are taken into consideration, will be trained to explain the process to her appropriately and safeguard her rights.

The person who formally assesses this is likely to be a social worker

Not sure where social worker came from my mind is clearly elsewhere! If you apply for Deputyship then a doctor will be appointed to assess capacity

"I always thought care home fee advice was to rent the property, use the income to pay the fees"

That would be fine if the rent would pay the fees!

£4000 a month to rent a 3bed semi in the Midlands-any takers??!!

I’m sorry you are in this situation, it’s a tough place to be. But I think you need to tread carefully here. If your mother’s dementia has progressed to the point where she does not have capacity and there is no lasting power of attorney for financial affairs already appointed then you may well need to apply to the court of protection to be appointed as her guardian. This is neither quick nor cheap, unfortunately.

If a solicitor has any doubt as to someone’s capacity they are duty bound to seek a medical report (usually the person’s GP, sometimes their psychiatrist if they have one). Any solicitor not doing this is negligent and I’d be wary of what other corners they may be cutting/obligations they may fulfil. You may also find that her care/nursing home raise concerns regarding adult protection via social work if you keep pushing for forms to be signed when they have said they don’t think she has capacity. They also have a duty to raise those concerns.

If she is lacking capacity then you've probably missed the boat for LPA. But you could look into Deputyship.

You need her GP to assess her before anything. It's not up to the care home staff to decide whether or not she has the capacity to sell her house.

Does your mum own the house 100%, or did your dad’s will leave his half to you?

My dads will left half to us

Fees at this particular home are £1400 a week I'm sure that possible rent of £650 will cover that lol

That's what solicitor said titchy

My mums house was jointly owned between her and me after my dad died. When she became ill with dementia and needed a care home I had to apply to the court of protection in order to sell the house as she had never signed a power of attorney . There was no problem in us getting our share of the money though.

Will social services not push for a sale if there are nursing homes fees involved.

They can push all they like, but if the owner doesn't have capacity, then they'll have to wait for due process to take place.

Can the solicitor phone your mum in the care home or zoom call her? She has signed the forms so the intent is there. It takes a lot for doctors to say that someone doesn't have capacity and the solicitor might catch her on a good day if she is reminded that she already signed the forms. Good luck