Solicitor saying a mental capacity assessment is needed for me to sell DMs house even though I have LPA

[Loub55]

I wondered if anyone could advise on this. I'm in disagreement with the conveyancing solicitor.

I'm selling my DMs house as she moved into a care home last year, she's been diagnosed with vascular dementia. She isn't too bad as yet but needs some support and she agreed it was the best thing for her as she disliked living alone.

She wants me to deal with the house sale and as we have financial LPA I thought it would be straightforward.
However the solicitor is saying that she needs proof of my mom's lack of mental capacity and that we will have to pay for an assessment.

Its not just the money, I don't want to subject my mom to that when I am sure it's unnecessary!

We have the LPA which says we can deal with her financial matter regardless of mental capacity. Surely this should be enough?

I don’t have answers unfortunately but I’ve just had a LPA for financial matters agreed for my dad and he wants me to handle some property sales for him soon so interested to see what the answers are because my understanding is the same as yours OP, or what’s the point of it?

I thought the idea was you had the LPA agreed when the person did have mental capacity to trust who they sign it to will act in their best interests?

Aged UK have a very good financial section on their website - worth having a look.

Would the solicitor accept a medical report from your DM's GP ? This may cost but you wouldn't be putting her through any invasive tests.

Although someone can use the financial Lpa when someone has mental capacity, there is a bigger decision at play if she can consent to being in the care home and if it is in her best interests and if you don't have lpa for health and welfare you can't make that decision. The solicitor is being thorough and ensuring it is in your mum's best interests.

I think LPA only kicks in once they have lost capacity

Financial LPA is at the donor's discretion, not just when they have lost capacity. If your mum wants you to handle the sale and has given you Financial LPA then my understanding is that you can. (It's different for health and wellbeing). Is there info on Gov.uk anywhere?

You need proof of lack of capacity for the LPA to kick in

You don’t need proof of capacity, or incapacity to activate and use a financial LPA.

my parent was in hospital for six months last year, and I was able to do all their banking and pay their bills. They had full capacity, just couldn’t access their normal bank. I did it all on line and actually took my iPad in when visiting and we looked at their accounts together, using my log in to their accounts.

it is not dependant upon the donor not having capacity at all

Not a property and financial affairs one, it can be used at any time. Unless it stipulates only to be used when the donor no longer has capacity, which most don't.

But you need health and welfare lpa which does depend on someone lacking mental capacity to make a decision where they live.

Is it definitely an LPA and not the previous type (an Enduring Power of Attorney) as that had different rules.

Financial lpoa can be used EITHER when the person is assessed to have lost capacity OR if the person has capacity and chooses for you to start acting on their behalf. Health and welfare LPOA can ONLY be used when the person loses capacity.
I think your solicitor is mistaken unless the POA you have is not the “lasting power of attorney” (rules are different for “enduring power of attorney”). Have a browse on here: https://www.gov.uk/government/organisations/office-of-the-public-guardian

Ask your solicitor if he will accept a letter, written and signed by your mother, instructing you to sell her house.

Are you sure that.it has been ticked to say valid once registered. Also are there any conditions included?

Oh goodness these is some wrong advice here.

health and welfare only kicks in when capacity has been lost- this can be used in respect of where to live, ie to move into a care home if appropriate, but this has nothing to do with a house sale and wouldn’t be what the conveyancer is asking. A conveyancer won’t ask to see a health and welfare lpa.

Property and finance can be used whether the person making the lpa has capacity or not, there is a box you tick in the form which confirms this. OP it is worth checking that the wrong box hasn’t been ticked in error saying the lpa can only come in to force when capacity has been lost, from memory I believe this is section 5. If it clearly says it can be used at any time then I would point this out to the conveyancer and refer them to page 6 of the lpa so they check this themselves. They’ve probably got confused!

Thanks everyone, we selected the cover all bases option for this very reason as she has always hated financial matters and wanted me to look after her banking ASAP.

We do also have health and welfare LPA.

Has your solicitor seen that?

To answer a few comments:

• Def a Lasting Power of Attorney (LPA)

• I do have emailed document from the memory nurse who diagnosed dementia which describes her worsening confusion so I can check if this would suffice

• Ask the GP for a letter is an option too I guess

It's just annoying as we thought the LPA would make it easy. I've also been asked to take the original document into the solicitors again despite already having done that. As apparently they didn't do a certified copy correctly?! Which is inconvenient also.

Yes they have got a copy of the whole form.
And I sent this image earlier, they responded that regardless they need confirmation from a healthcare professional of her lack of mental capacity. In case the land registry ask apparently??

Sounds weird to me

Find a different conveyancer. Show them the documents upfront and confirm they're happy to deal with your case, so you don't end up wasting your time again.

Actually they would as the decision where to live is under health and welfare Lpa which evidence of lack of capacity will be required.

Without wishing to generalise, some conveyancers see an LPA and panic!

I would email the solicitor attaching that page of the document pointing out it has been drafted and registered so that it can be used immediately and whilst the donor (your mother) still has capacity, therefore a capacity assessment is unnecessary. If HMLR raise a requisition as to capacity then they would reply to them stating the same. I’m not sure why HMLR would query on that point anyway! A proper capacity assessment can cost in the region of £250 + vat (depending where you’re based) which is a totally unreasonable cost too- the whole point of the LPA is to avoid this faff! Some doctors are happy to write a letter for a small fee but I still don’t see why this is needed. I could maybe understand if they wanted a letter from your mother confirming her authority as a belt and braces approach, but again the point of the LPA is such consent should not be needed as it is conferred through the LPA. Your conveyancers should be doing their own OPG100 check to make your mother hasn’t cancelled the LPA and they’re able to take your instruction- I get the impression the person you’re using isn’t totally familiar with LPAs.

also to certify an LPA correctly every page needs to be certified, most documents you can get away with the first page only. So they’ve probably just done the first page- that document would be rejected by the buyer and HMLR too so I can see why they’ve asked you to drop it again, annoying as it is, but again shows they’re not familiar with LPAs.

@Louisetopaz21 maybe you’ve dealt with this when someone has lost capacity and they’re looking at housing in that context. The purpose of the Property and Finance LPA is specifically to deal with the buying and selling of houses and other financial matters. It is independent of the health and welfare LPA and you can have one without the other. As per the highlighted bit on the attached pic, you’ll also see from the OP’s attachment that this document can be used immediately and while the donor has capacity.

The solicitors havent asked to see the health and welfare LPA. I don't think this has anything to do with the house sale, she's been in the care home since last summer so there's no question on that.

@Ithinkitstimeforbed is spot on.

The only reason I can think that your conveyancing solicitor wants a capacity assessment for your mum is because if the donor (your mum) has not lost capacity, then she needs to give you permission to use the LPA. If she has lost capacity, she doesn't need to (can't) give you authority to use the LPA. They are perhaps checking that they don't need to get her permission for you to sell the property using the LPA. There has been a lot in the press recently about abuse of LPAs so I would guess that the solicitor is asking for this to cover their firm's position in case someone pops up at a later date to say your mum did have capacity and didn't want to use the LPA.

Unfortunately the Land Registry is extremely inconsistent when it comes to what they will and won't accept. For example, you can technically use the LPA summary to sell a property, except that the Land Registry state in their practice guide that they can request to see a complete copy of the LPA, which means any buyer's solicitor is going to have to have a complete copy, and the summary is utterly pointless.

There really needs to be a lot more dialogue and agreed process between the Office of the Public Guardian and the Land Registry, it's a constant source of frustration to private client and conveyancing lawyers.