Safety of mirror wills? One person has dementia and assets are shared, one sibling has poa.

[MirrorWills]

Same situation new aspect.

Elderly married couple have mirror wills, their assets and money are mostly shared some shares in dad's name and pension etc.

Dad didn't want anyone except daughter 2 to be his executor. Now he has dementia.

Can his wife suddenly get her own will drawn up?

Mum has daughter 1 as poa even though she's OK but wants support.

House is sold and a large amount of money is about to go into a bank account that daughter 1 has access too.

A will was changed, whose?
What's to stop daughter one from syphoning off all the money?

If he hasn't got capacity then no. You need a deputy ship order.

If your dad has capacity to sign the POA then he can appoint whoever he wants.

Does he have the capacity to do that?

Where will mum live once house is sold? Will they both move to the flat?

No. It's the choice of the person who they want to be their attorney. Both have to sign the application and also someone else as a witness to say it hasn't been coerced. But as someone has said, that must happen ASAP. I got it done for my dad when he was showing signs of dementia but before he was judged to have lost capacity. At that point they can't appoint an attorney as they can't make those decisions, and it'll have to go to court.

He needs more than just the ability to sign his name.

Oh yeah of course. The solicitor who did mine spoke to my dad alone for some time to check it was definitely what he wanted.

@Holesintheground more than that is required.

He's too far gone now for that.

So when he wad ok he thought his estate /WILL was secure, everything would go equally to all dc and his one trusted dd was executor to make it all fair..
Now he has dementia and he didn't want wife or dd 1 to be poa or executor in his will he's essentially just lost control of everything!

His will evaporates in power and all his assets are his wife's and that's that...

Him losing capacity doesn't change what his will says.

If the solicitors haven't ensured that the money from the house sale has gone to a joint account, you need to make a complaint to them. ASAP. And the SRA.

If you have concerns about the daughter who is managing his affairs, raise a safeguarding complaint with the OPG.

You also need to apply for a deputy ship.

Deputy ship looks like it costs a hell if a lot 400 for this firm 500 for another then more for a judge.

But money goes into a joint account which dd1 has poa over via mum.

Sorry to be so blunt but the cost doesn't matter, you need to do it.

If it's a joint account nobody should be accessing it while your dad doesn't have capacity. From a safeguarding POV it should have been split, but obviously can't be done now.

You need a deputy ship ASAP and to report any concerns to the OPG.

Any jointly owned assets (such as the joint account and the jointly owned house) passed outside of the will anyway, by virtue of survivorship.

If you have a joint bank account and one person has lost capacity , once the bank find out they will freeze the account. You have to apply for a deputyship order to handle any money belonging to someone who has lost capacity without a POA. It costs a lot , you even have tompay a doctor to sign the forms and you have to account for every penny you spend, you also get audited which is very intrusive. You can be prosecuted for mismanaging the money. Being married makes no difference, i know from personal experience of it happening to my husband. They also made me shut all joint accounts and split the money.

I was PoA for my dad (I also have siblings) and it was shocking to realise just how much ability there is to take advantage of the situation. It terrified me and I shared dad's accounts with my siblings on a Google doc that we could all access. They never did but I felt better knowing that I was making it as transparent as I possibly could. Not sure what position you are in here but transparency needs to be encouraged either way!

Yes, I know from personal experience, thanks.

Agreed, his will still stands. It's not as if when someone develops dementia everything is handed to their next of kin automatically. And as I said, there is an issue called deprivation of assets which is taken very seriously. Look it up. It's where family members are deemed to have used for their own benefit money or assets that belonged to someone in need of care that should have been used to pay for that person's care. If- hypothetically - the sister with POA takes your dad's share of joint funds and then those are needed to cover the costs of his care, social services won't just shrug and say 'oh well, guess it's on us'. They can pursue that for many years - the law allows that - after the person's death too.

Your best course of action is to secure your dad's half of all funds. This is in your mum's interests too as with your dad's condition, his half of the house is to cover his care costs but hers is not. It would be better in a way if the house hadn't been sold as they can't force a sale with one person still in control of half of it. Now however your dad's share has to be there for use on looking after him.

When was the dad diagnosed and has this been formally confirmed, eg by a consultant, from an MRI? Is he judged to still have capacity by his doctors?

They are buying a smaller flat half the price of house sold, the poa is talking of distributing money now.

Report to the OPG!!!

You've been told this multiple times.

No. It's not theirs to distribute.

If that happens where does mum go if funds are frozen and she can't buy the new flat?.
And she's stuck with someone wifh dementia

Easy to say now - but it sounds like mum & dad are behind the curve on this one, so you need to establish exactly what CAN happen.
Has the house been sold? Because as a joint owner, was your dad actually capable of agreeing to that - if you're saying he's "too far gone"?
As said upthread, there's a risk of the joint account being frozen if the bank know dad isn't in control (through dementia) of his assets (or half of). Or at least limit access to it being used for living expenses - which would likely preclude buying another house.

Sister with POA on behalf of mum can only be acting for mum's half of everything. Must act in mum's best interests - which is not distributing funds as no-one has yet died. And certainly not giving away dad's share if he's likely to need care paid for. (Technically, mum could gift some of her cash to others, but it doesn't sound like that's the issue).

I know you didn't like the price of the deputy application - but that plus legal advice is probably your best investment right now.

As above, you really must report this to the OPG. It's clearly not in a person's best interests to give their money away.

Sorry OP, but you don't seem to understand. A Will and an Executor are only necessary when someone DIES.

NO ONE should be distributing your Father's money, he IS NOT DEAD!!

As your Dad didn't have the foresight to get a POA done while he was still mentally stable, no one can act on his behalf until they have been appointed Deputy by the Court of Protection. As you've already found, this is a lot more expensive than had he done a P.O.A., but that ship has sailed now. Getting the deputyship, may also take some time.

Meanwhile, who on earth thought it was a good idea to sell your parent's house, and has the sale actually gone through? If not, then put a stop to it, as now your father has no capacity, assuming he was either the sole or a joint owner with your DM, then he cannot sign to sell the property.

Once you have Deputyship, then whoever has that, which should, unless your parents were planning on separating, be your Mum, then she can act on behalf of herself and your Dad. The fact that your Mum has appointed your sister? as her POA, does NOT necessarily mean that your sister can spend any of your Mum's money, unless your Mum gives her permission to do so. It will depend on what she has put on the P.O.A. She may have agreed that your sister, can do certain things for her, which I believe would have to be stipulated, although I'm not 100% sure on that, or she may have stated that the P.O.A. is only actionable, as and when she loses capacity to make her own decisions. You need to talk to your Mum and see if she will let you have a copy of the P.O.A. so that you can see what it says.

Also, has she done a P.O.A to cover her health? This is a separate document. As if not, she really should do, so that should anything go wrong, and she be unable to make a decision after, for example a road accident, or an operation, you and your siblings will not have the right to make any decisions about her, for example having machines turned off, etc.

This sort of post is something that should make us all think. Whether we be older parents ourselves, or the children of older parents, with youngsters of our own. It really is INCREDIBLY important to have P.O.A.s for both finances, and health in place BEFORE anything goes wrong, dementia, accident, etc.

Distributing the money to who? It’s not her money to distribute!

That money is still your mum & dads money, if someone with POA starts taking that money it needs reporting asap.

The dad didn't want wife as poa.

House sold as it was claimed it wasn't going to work unfortunately but it's perfect, everyone knows dad and a good network of people friends but away from family..

It's all very well saying report it but that would leave a vulnerable couple essentially homeless with no money because it's all locked.

Just highlights how vulnerable we all are really.
The dad thought everything was sound and secure and tied up he went to great lengths to make sure of that in his will because he was adamant it should be fair.
Now the power balance has totally shifted.

You sister has POA for your Mum she can only handle your Mum's money if that is what your Mum wants as she still has capacity. She cannot distribute the money owned by your father who has lost capacity. That is called deprivation of assets which you can be prosecuted for. You need to explain that to her and go to a solicitor to apply for court of protection. Lots of people are telling you this, you run this risk of being reported to the OPG by social services if you don't do this.

So where a POA is no longer possible a Guardianship can be applied for via the Court. However, this is more expensive than a POA. There is a duty for anyone holding a POA to act in the interests of the person they hold it for. However, in practice a financial POA gives very broad powers and very significant transfers could be made without any real reference. So care should be taken.