Deprivation of assets? Can I be accused too?

[Mirandawrongs]

I have POA over my mother, jointly with my older sister.

I deal with all medical stuff and sister looks after the money.

mum is in a nursing home.
Self funding as over limit but will be under limit by November.

just found out my sister has given large sums of mums money to her adult children.
mum says it’s fine as the home can’t kick her out.

I’m concerned that this will be seen as depriving the assets mum has/had.

am I right to be worried??

The person who received the "asset" can be held responsible for paying the difference in care costs

I don’t want to jump straight to suggest reporting her but I do think if you choose to now you would get to keep your own POA.
It would be reasonable to assume you were happy to leave your sister to manage things as she is a trusted relative and that naturally now you would be looking into how things work in preparation for when her money runs out. At this point you became aware of things going on that concern you. This reminded you of some other concerns you have had in the past but had not acted on as you assumed your sister would have looked into these things before acting. However in order of transparency you are letting them know about these things also now so they can decide on whether they are appropriate. Anything you knew in the past and did not act on, I assume you were not aware at the time this was not usually allowed within the POA. You had no malice and no financial gain.

The 10k could be an issue but the Grandson living in her house and the use of her car shouldn’t be an issue, however it is likely she will have to sell the house.

I think it is also worth thinking about what should happen if somehow DN asks for permission to stay in the house, or you become aware they have lied to authorities to prevent the sale of the house by pretending someone else lives there etc.

They will likely try to sell this to you as protecting the house for your own inheritance, that it is what DM would want as she is not happy about paying costs herself when others get help from the council and the “poor homeless DN” angle.

If you accept this now, bear in mind they will also likely do the same when it comes to the sale of the home and you accessing your share and your children’s share of any inheritance.

sisters son lives in mums house, if I ask her if he is paying rent I get “yeah, of course “
her daughter drives mums car.

You say your mother's funds run out later this year - but they don't. Your mother has a house and a car, and Social Services will not fund your mother's care while she has assets she can sell. She could alternatively rent the house out, if the rent supplies enough money to cover her care home fees. (The house would only be discounted from the assessment in limited circumstances, e.g. if there is a spouse living there.)

I'd flag up the deprivation of assets situation with the Office of the Public Guardian. You can 'disclaim' your role as attorney, but if your sister is removed from the role someone will need to replace her.

At the point when her funds are genuinely running out, you need to contact Social Services at least 4 months beforehand, preferably 6. I've recently done this for my relative. During the financial assessment, they ask to see bank statements.

Those gifts sound like they should be taxable too.

https://www.gov.uk/inheritance-tax/gifts

I'd report get to the OPG. If you don't you could be also held liable.

There are several issues here:

• you can't just help yourself to someone else's money when you hold POA. It's about acting in their best interests and making sure that you are able to pay for care going forwards for as long as is possible.
• What evidence do you have that it is your sister making these withdrawls rather than you? Because if you've got joint POA, you run the risk of it being assumed you're in on it. Is it cash withdrawl or bank transfer? Cash is harder to manage but bank transfer to your sister's children is perhaps more helpful. If it's cash, you might want to seek legal advice - check your home insurance policy in the first instance. You really need to try and cover your own back here.
• Is there a will? Presumably that states that anything left is to be split in whatever way your mum wants between the children/grandchildren. Does this mean you and your family will have lost out, even assuming if she were to die tomorrow and the deprivation of assets doesn't kick in as a thing?
• What your sister needs to understand is that if the money runs out before your mum dies, they (the local authority who will be responsible for taking over funding her care home fees) will take a very close look at how her finances have been managed. They are allowed to go back years. If she is in Care Home A at rate £X, and the council can pay at £Y rate she either goes to Care Home B at £Y rate or she stays put but the family has to top her up. If there is a decision that £Z amount comes under 'deprivation of assets' then regardless of which care home your mum is in, the family will need to pay £Z amount before the council funding kicks in: there's your problem.

You need to insist on seeing your mum's bank statements, OP. What's happening is theft and you don't seem to want to face up to that.

@Mirandawrongs i have a friend who went to jail for just this. It was the care home that pushed the prosecution, even against his mothers wishes. This is a bad situation for your sister

But that's not the situation here and I imagine Skinny was talking about this particular POA being in place because their Mother no longer has capacity.

I used to work in this field in the local authority and although I am a few years out of touch, on my watch this would have be passed for a safeguarding investigation, and notified to the OPG and also to the police who would decide whether it was theft or not.

What would play into that is whether your mother was deemed to have capacity at the time the "gifts" were made. A large factor will be whether the POA was registered at that time. If it was not registered it will be viewed as your mum's decision - but coercive control could be considered.
If POA was registered then it may well be considered financial abuse.

Also they will look at her previous pattern of giving gifts. It is amazing the number of people who get POA registered and then unilaterally decide what their parent would REALLY have wanted was to give everyone in the family lots of money or to pay for holidays or university education.

If it is decided that she intentionally deprived herself of assets, the local authority can assess her as if she still has the money that she gave away. That means that they can make the decision to not fund her care until she reaches the point in time where her money should have run out if the gifts were not made. The care home will want to be paid so they absolutely can give notice. The family may have to pay the money back to enable her to stay there.
If not, then she can be placed in another, cheaper home. The upheaval of a move for someone with dementia should not be underestimated.

Depending on whether you also signed off on this i.e. whether it was joint POA not joint and several POA, you could be implicated. You have no choice but to report this to OPG.

If you do not, then in a few months time the local authority will be investigating and reporting it.

Basically, it will be investigated and probably by several agencies.
If your mum did it intentionally the local authority can decide not to fund her until the time she SHOULD have reached the threshold.
If your sister did it, your sister is potentially facing criminal charges.

I think your sister needs to stop and pay back any large cash transfers now.

If she won't and possibly even if she does, I think you need to report her to the OPG.

Definitely abuse of the POA regardless of the deprivation of assets. Your Sister needs to return the money now or she could find that Social Care report her to OPG in due course, if you don't do it first.

My husband had POA for a relative. It does state that you need to keep records and you may not give the money to anyone else it the form of gifts. Did your sister not read this?

Read these links OP. I work in this area and large gifts to family members should have been referred to the Court of Protection for approval, assuming the Donor does not have capacity.

https://www.gov.uk/government/publications/giving-gifts-a-guide-for-deputies-and-attorneys/opg2-giving-gifts-for-someone-else-web-version

https://publicguardian.blog.gov.uk/2019/06/18/how-we-do-investigations-at-opg/

You also need to consider your own position here, as you are aware of the circumstances and to do nothing is probably not a good option.

When I say not reporting is probably not a good option, what I actually mean is that you need to report this ASAP to the OPG. Here is their email address

[email protected]

Also, your nephew living in your mother's property - is he paying full market rent?

I have recently dealt with a case where the Attorney rented out their parent's property to a family member at an undervalue up until the point that the parent died.

The siblings of the Attorney took legal advice and the Attorney had their share of the estate adjusted to include the rent that should have been charged for that period. So if the market rent was £900pcm and the family member was paying £400pcm for a year then this was a loss to the estate of £6k.

There's also the tax aspect too. Anything over the annual limits needs to be declared if it is gifted from capital. It will also impact on IHT. If your mother dies within seven years, it goes back into her Estate for tax calculation. So it will impact on you again if you are an executrix for your Mother.

In your shoes op I think I would stop discussing it with your sister but keep a very careful record of everything that happens so that you are covered

If @Mirandawrongs is an attorney and she knowingly allows conduct which is contrary to her duty as an attorney, that would be very bad. The only way she will come out of this in the clear is if she reports what she knows now.

OMG😱

Wow. Your sister is a thief.

I actually hope that your sister gets fucked over, but not you.

I know someone who ended up with a £70,000 bill because of how they mishandled their father's money. She assumed her father could just give his money away and that turned out to be a poor assumption!