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?

Thank you @Ithinkitstimeforbed this is really helpful!

I wish people wouldn’t state that LPA for financial issues only kicks in when someone has lost capacity. That is 100% not true unless the wrong box has been ticked which isn’t the case here. It is different with health and welfare as it’s only used when someone HAS lost capacity.

I use LPA financial all the time and parent has full capacity but looks to me for advice and will do what I suggest.

The conveyancer is wrong. They don't need that unless there is a condition in the LPA requiring it.
We sold mums house last year
I had to take a copy of the LPA into the conveyancer and proof of who I was and my brother had to do the same (we have joint POA for decisions over a certain amount ie house sale) but that was it.
They never needed to see mums medical paperwork or speak to her (which is good because she's non verbal) because that's not needed for the financial LPA to come into effect.

@Eggsley I’ve never known the land registry to rely on the summary before, always requested the full copy, which is really frustrating! Totally agree that the OP and HMLR need to sort their processes out but I can’t see that ever happening!

@Loub55 Glad it was helpful! Hopefully they won’t make it too tricky for you!!

Thank you I'm glad to hear it's not me having the wrong end of the stick!
I'm taking the original LPA in again on Monday so I'll have a chat with them.

I really don't want to have to move to another conveyancer, or have an assessment done, so I'm hoping they will understand what I'm saying! I feel more confident after the agreement I've had on here ☺

@Ithinkitstimeforbed me neither. They always want a full copy but the battle I sometimes have with seller's solicitors to get a full copy when they've provided the summary is ridiculous! There is too much inconsistency, the Land Reg are so unpredictable and it makes the process painful for everyone.

As your Mum arguably still has a level of capacity she can sign a letter giving you permission to deal with this all on her behalf and that along side the LPA is enough. I would push back and if necessary go elsewhere.

Speaking as a GP, her GP is unlikely to agree to provide a letter. Capacity is situation-specific. Almost everyone has the capacity to make some decisions even if they don't have the capacity to make others.

As a doctor, I am knowledgeable about what level of capacity is required to make medical decisions. Decisions around legal issues are a different matter. I do not have the right expertise to assess someone's capacity to make that decision, unless they are so profoundly cognitively impaired that it's obvious that they can't make any decision. From what the OP has said about her mother, that isn't true of her.

My dad and I have LPA for finance (and health) for my mam who has Alzheimer's. They bought a bungalow last February and during the long conveyancing process this came up. It turned out that in order for my mam TO sign and be part of the buying and selling she needed a capacity assessment, but if my dad was going to effectively sign for both of them it wasn't needed as he had the LPA. At first they did say the opposite and we looked online into expensive capacity assessment assessors (a bit of tautology there).

My understanding now is that if you have LPA checked as 'now and also when capacity lost' as others have mentioned, then you can organise and sign for this without your mother's involvement. It is difficult to understand and I think a lot of conveyancers don't fully understand it, I can see why 🥴

As pp's have said, this does NOT apply to financial LPA.

I'm selling my mum's house for her at the moment, identical situation to you, and no issues with using the LPA. Just had to provide ID and access to a validated copy of the LPA.

Have you told the solicitor that your DM has capacity, and has instructed you to handle the sale?

I can only imagine they've misunderstood why you're using the LPA!

Ditto the advice above. We sold a relative's house via LPA and no capacity assessment was required. Equally the relative was poor at finance and just wanted it sorted by us instead of themselves.

As the box is ticked to say it can be used straight away the Land Registry will not ask for mental capacity. Your conveyancer is being over cautious. I deal with these applications frequently.

And as you can use your LPA even if she still has capacity, this highlights their error further!

Thanks, I'm going in tomorrow so I'll see what they have to say.
She didn't reply to my last email from Thurs eve, where I said about it not mattering if she has mental capacity or not. So she may have realised her error (unless she was just off Friday!)

I noticed after as well, that it actually says for use in house sales on the very front of the LPA form!

I agree with you that it’s not required.
However if it does come to it, just to reassure you a mental capacity assessment is not particularly invasive and will involve someone having a chat with your mum.
still, annoying for you if it’s an unnecessary expense.

@Wafflethewonderdoggy that is reassuring, she found the dementia assessment quite unsettling - more so the first one she did tho as it was over zoom and she had never used a computer! 🙄

It is an annoying extra cost tho esp if not necessary

There is some very bad ‘advice’ being given on here. I am a wills and probate solicitor. You don’t need proof that your mother has lost capacity as she ticked the right box on the page that you showed in your post. The LPA can be used with her consent while she has capacity or without her consent when she doesn’t have capacity. However, the ‘solicitor’ may just want to assure themselves there is no financial abuse as this can be a real problem. Does the law firm have a wills and probate department you can speak to? Do you have a letter from the vascular dementia clinic you can show them. Ask the GP if they will write to confirm diagnosis. Confirmation from the care home of residence may help too.

It’s as simple as getting a letter from a
GP and that wouldn’t hurt your mother or put her out. The conveyancer is working in your mothers interest and covering their own back because there are people
who abuse financial POA and they want to be sure that is not what is happening here.

She's wrong but to be on the safe side I would suggest the solicitor and the estate agent visit mum to discuss it with her so she can authorise the sale and knows its being sold by you on her behalf.

It sounds like the solicitor is approaching this from the wrong angle as it does sound like your DM still has capacity. A dementia diagnosis does not automatically mean loss of capacity and capacity is measured in different ways for different decisions. They should be asking for written evidence that she consents to you acting for her in the house sale. That is much simpler than carrying out a formal capacity assessment which may well conclude she still has capacity so her permission for you to activate the LPA would still be needed.

But would you have had the authority to sell their house?

Yes, financial poa let's you sell a house but a good solicitor and estate agent would visit the person anyway especially when they have capacity

I think the subject of whether she has mental capacity is a tricky one, like a PP said who was a doctor. She is fine with some things, some days - other times quite confused.

We have been open with the whole process and she basically told us to sell the house as it was pointless it sitting empty. But then the other week she did briefly mention about going home soon to her friend when she visited. It's not often she says anything like that, so whether she is declining mentally I don't know.

Perhaps an assessment wouldn't be the end of the world, I mean financially it's pretty much all going to go to the council eventually anyway so it can just come out of the house proceeds. Esp if it wouldn't be stressful for her.

I could speak to the NHS memory team that diagnosed her, to see if they would put anything in writing as their previous notes are quite vague.