Selling home under LPA

[CandidLurker]

I hold LPA with another person for my uncle. We have been through all the stages- diagnosis of dementia at memory clinic, care needs assessment with adult social services. Uncle is now resident in a care home and we need to sell his property to continue to fund the fees. We checked with adult social services as to whether another capacity assessment is needed with them before we proceeded to sell the property and they said no.

Property has sold very quickly and solicitor is now saying we need a letter from the Doctor to confirm he has lost capacity. GP is saying this isn’t a service they
provide.

Has anyone else come across this or been asked for a Dr’s letter in this situation. In one sense I’m reluctant to put relative through yet another assessment as it could be stressful for him.

i have written to the solicitor to ask him to confirm why exactly such a letter is required when there is an NHS diagnosis on medical records etc. but he hasn’t replied as yet.

It may be the solicitor is requesting a see mental capacity assessment because capacity is question specific. Just because your uncle has had a capacity assessment previously, that will have been regarding his ability to make an informed choice about his care. Selling a home is different so a capacity assessment regarding his ability to manage his financial affairs will be needed to show he is unable to retain information and use that information to make an informed choice.

no they are not set up like that. They are set up in the least restrictive way.

I think the solicitors are doing unnecessary arse covering @CandidLurker, I hope it doesn’t jeopardise the sale. The council requested the nursing home do regular capacity assessments as part of the DoLS and if the Safeguard has been agreed by the local authority, that report may help you but I guess the solicitor might feel the home have a conflict of interest.

@Ticktockwatchclock the difficulty we had was that if you didn’t know our relative and chatted for 20 minutes at that time he’d have said he managed all his affairs (hadn’t for years) and wanted to go home (dilapidated and unsuitable for needs) quite convincingly. Over a longer hospital stay, the doctors recognised his lack of insight and told us to talk him into 24 hour care but very little was put in writing that we could use as evidence.

I know the MCA is there to protect people but dementia is sadly a one way journey and as LPA we’ve had to make hard decisions to keep our relative safe.

I think I would ask them to be more specific about what the question is. As the holder of a registered lasting power of attorney for financial affairs set up in the least restrictive way, your loved one’s mental capacity is not legally an issue - you have the legal power to make financial decisions and sign paperwork as required.

What they may mean is that they want to be sure that your loved one can’t make a capacitous decision to object to the sale, and that they aren’t considered likely to recover mental capacity in the future. Do you have LPA for health and have the GP practice seen it? It might be that you could get copies of discharge letters from hospital which describe capacity assessments.

@FiniteSagacity yes this is exactly our situation and broadly the same sequence of events. I do understand the point @Ticktockwatchclock is making to an extent. But once decision (a) has been made - residential care being the only valid option. Then effectively decision (b) has also been made as a result. We have to fund his care which means we have to sell his property to do so.

@PermanentTemporary yes we have both types of LPA and the practice have copies. The care home is not in the same area as relative’s property so there is new gp practice that covers the care home. I assume all records have been handed over.

Yes the records should be available to the new practice.

Id start with the solicitor though. Ask what question they want answered for which they need evidence of lack of capacity.