Selling DM's house if she refuses consent?

[Tweeti]

Wondering if anyone knows what to do in this situation....

DM has Alzheimer's and has been in a home for about 8 months. Drs and Social Service say she needed 24/7 care but there is no DoL Order in place. The decision was a combined medical/SS/ family decision and DM accepted it but has never been happy there (although she was never really happy anywhere even before the Alzheimer's!).

Anyway, she is self funding and we need to sell her house to pay the fees. I have an LPOA. Initially, she was agreeable to the house being sold. My concern is that she seems more and more unhappy at the home and is now questioning the sale of the house.

If she refuses consent to sell, can I go ahead and sell anyway on the basis that she has Alzheimer's (mid stage)? Or would I need specific advice from a doctor that she doesn't have mental capacity to make the decision about selling the house?

If it's the latter then should I do that now before putting the house on the market? I don't think it would be fair on a potential buyer to start the process and for it all to grind to a halt if she refuses consent at the last minute.

If you have lpoa you can do what you like as long as it’s in her best interest.
she doesn’t need to be involved in any of the sale.
I’ve recently sold my parents home, with lpoa, they didn’t have to do anything, no signing, no agreement, nothing. (
maybe look at moving her to a different home tho

I assume it is the financial LPOA that you have? If so then I believe you can do whatever is necessary provided that it can be shown to be in her best interests.

Can that be checked with the Office of the Public Guardian?

If you have health POA then you can't make the decision, if you have property and financial POA then you can. LPOA can only be used though when someone lacks capacity so you also need confirmation that your DM lacks capacity.

I have both property and finance and health and welfare LPOAs

I would think that any documents you have saying she needs 24 hour care and is assessed as needing to pay care home fees would be evidence along with an Alzheimer’s diagnosis/mid-stage. The grey area is that people are allowed to make unwise decisions if they have capacity.

If there are no other significant assets it seems the rational decision would be that house needs to be sold unless it would be reasonable and possible to provide that care in her home. Is there anyone who is challenging this, eg other beneficiaries of the will/any siblings you might have? Do you have POA alone or is it shared? I think in some cases decisions need to be jointly taken , something to do with if you hold the POA jointly and severally but I can’t remember the details.

Unless you have an actual diagnosis that declares your DM lacks capacity, you’re on rocky ground. Needing 24 hour care doesn’t automatically mean someone lacks capacity. Focus on getting this diagnosis before putting the house on the market.

I am the sole attorney. I have 3 siblings but we are all in agreement that she needs to be in a care home and the house should be sold.

She has savings but these will be all gone in 12 months from now.

Care at home is not really an option - she couldn't find it for more than a year. My understanding is that SS wouldn't fund it.

My concern is that she objects to the sale and a dr says she has capacity to decide that. And then she says ok I want to go back home. I'm probably spiralling!

Will she actually notice if you do it? Presumably she doesn't still visit.

She probably wouldn't notice but she would ask about the house. I wouldn't want to do anything improper vis a vis the LPOA though.

Once her money runs out, the local authority will issue documents impelling the sale! However, unless this is imminent then her doctor will have declared her incapable of making this decision.

My concern is that she objects to the sale and a dr says she has capacity to decide that.

You need to seek legal advice!

I think pp are right in saying that ultimately you use your financial LPA to make decisions in her best interests, whether or not she explicitly agrees. Need for her explicit agreement is outweighed by the need to make decisions in her best interests where there's an argument that she doesn't have full capacity. The Alzheimer's diagnosis is the biggest factor in that argument, as is her general understanding. I found that all HPCs were very reluctant to pronounce on capacity in any definitive sense - because there basically isn't a definitive definition outside of a person's individual circumstances - including those whose job it was to assess her cognition (she had Parkinson's) and she was canny enough not to consent to their cognitive tests . I didn't, in the end, need to sell her house for fees but I was preparing to and I would have done that regardless of her not liking the idea, because she was wholly dependent on the care home. She actually never had any objections and couldn't really understand the concept of selling her house latterly but I would have taken that decision in her interests.

Capacity is layered and dynamic and people's capacity to make decisions for themselves depends on the decision. DM's Parkinson's nurse said to me that she would approach it on a decision-by-decision basis and ask DM questions to find out if DM understood not just her own wants on a decision but the medium and longer-term consequences of making that decision (in your case, e.g. does your DM understand the need for care fees to be paid and the consequences of them not being paid and what would happen if they weren't paid, what arrangements would she make if they weren't paid etc.)

If you feel the need, chat to people who care for her, her GP, adult social care contact if you have one and your family, tell them what you intend, I think they will say it's up to you. This is assuming there aren't other attorneys - you should agree with them too if needed. Social care won't fund more than 4 short care visits a day at home, they'll fund her in a care home when her money runs out - if you didn't have LPA, they would attach a claim to her house to fund her care anyway.

This is a really standard decision for attorneys to have to make: the people who agreed she needed residential care should support you. It's hard for her but also for you to realise she doesn't have the final say on her own finances any more but that's what LPA is for.

I feel there's some scaremongering about misusing LPAs, and there doesn't need to be - your DM gave you LPA for this purpose and as long as you make financial decisions in her best interests, you are fulfilling the duties of an attorney. I was my DM's attorney for 3 years, no-one ever, ever tried to interfere in my decisions or audit me - I kept good records and chatted to people when I needed support. It's so much better for the person that they have an attorney and all the professionals I met were just pleased I was doing it.

@BinaryDot thank you - those insights are really helpful.

I think your questions have been answered but I am in the same boat . It's bloody awful isn't it . My DM needs to be in care really but won't have any of it and SS won't help as she has too much money !

Same here. Completely fed up with it all, it's making me ill with the stress of constant back and forth and unhelpful authorities.

Hi Tweeti.

There's a few things in response:

1. Does your mum lack capacity to make the decision herself? (The decision to sell her house)

1. Will you be using your LPOA powers due to her lack of capacity?

If the answer is yes to these questions- the care home should be applying for a DOLs to the local authority. A best interest assessor (bia) looks at all less restrictive options to meet needs, ensuring any restrictions are proportionate to level of risk. Sometimes a BIA may suggest it is less restrictive to explore living at home with a package of care for example. Other times they will agree with the care home placement. I think a DOLs assessment would give you some clarity.

If your answer is no to question 1, then your mum is the decision maker. If she wants to move back home you can request an assessment under the Care Act 2014 regardless of her being a self funder. Once her home is her only asset, arguably if she wants to live in it she won't be a self funder anyway. An assessment would focus on your mums needs and how they can be met- your mum is entitled to this assessment (small charge sometimes). The social worker would assess capacity to make this decision r.e. where and how can care needs be best met. I don't think a local authority can blanket state that they won't provide live in care. I've put it in place on many occasions, also another option could be a mixture of overnight care with multiple visits a day.

If your answer to question 1 no but your mum changes her mind I'd seem legal advice. I wonder if ypu could ring the OPG for advice too?

Hope this helps.

It's a shit show , I don't mind paying but the red tape to get an assesment is bonkers .. yes you are entitled to it regardless of your assets but you can't get to the top of the list because there are people with nothing going in front of you!

Absolutely ridiculous system .. I need help to navigate this situation..

I'm so sorry to read that @borboredybored I think there's so much variance between local authority's. Are there any safeguarding concerns with your parent at the moment that might be another way to get help- self neglect would fall under this umbrella?

@Cactuslove yes and I have raised them today but I don't hold out much hope tbh ..

I'm going to have to make some decisions but I'm liquidating all her spare assets as this willl need to be done anyways now she is worse

Has your dm got any support in place at the moment? Care agency visiting in the day etc?

It's such a stressful time. I've worked in the area for years yet when everything we are discussing happened to my grandad I literally didn't know how to navigate it. If you have any social care questions or anything I'm happy for you to dm me. I'm sorry you feel let down.

Speak to the LA. In some circumstances they can fund her and put a legal charge on the property which allows them to recoup the money when she dies.

My mother in law ended up in care and eventually the house was sold to pay for care. I sincerely wish we had gotten advice from solicitors as her care was needed due to medical reasons and I dong beleive she should havd paid. I know of other people, with loads of money, who haven't paid anything.

@Cactuslove thank you .. let down is an understatement. It's an absolute shit show .. I won't bore you with it but I'm an expert on the care / dementia system now ..

I just think we should get the same help at the same time as people that have made different life choices ..

It makes me mad.. I don't care about the money ( I have enough of my own ) but the support comes wrapped up in the same parcel !

When she had the stroke the OT in the hospital said she couldn't help us because we had money and that we had to pay for private respite at a cost of £2000 a week.. so we had to view / find / pay / sort a care home whilst doing a full time job while someone who has never worked gets it all sorted for them ..

It's simply not fair .

We are supposed to get a care assessment in 6-8 weeks but I know from butter experience we will never get to the top of the list because other people jump the queue .

The only way to get them to come is to ring care point ooh when she is doing something dangerous and then we get a care assessment but last time she managed to convince them she had enough capacity to stay at home on her own .

She really doesn't and is an accident waiting to happen ..

I've done all I can , I'm at the point of handing poa and her pot ( when I've liquidated it ) over to SS and walking away .

Mum abuses me verbally and accuses me of all sorts . I can't take much more ..

Anyways sorry to de rail the Op 🙈

This seems useful re assessing capacity https://www.scie.org.uk/mca/practice/assessing-capacity/

eg section on capacity to make a particular decision:

‘The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
Understand information given to them
Retain that information long enough to be able to make the decision
Weigh up the information available to make the decision
Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.‘

It might be that your mother is not able to weigh up the information for eg.