Brother staying in Mum’s house

[tiredofworking]

My mum is in a nursing home and has no capacity. She has savings and 2 properties. Currently she has CHC funding but this is obviously subject to review.
All 3 of her children have POA. One sibling never left home, he is now 41. He paid a token amount of board. My father died and he continued to live with Mum.
As my mum will not be coming home I assumed we would sell main house but he has issued legal letter stating he will be staying there long term. All owner expenses to be paid from mum’s money.
My sister and I are fuming he is living on the cheap like this. I’ve reported him to office of public guardian but they won’t help.
What can I do without spending a fortune on legal fees???

A letter signed by him is worthless, seek your own legal advice and go back to the opg.

Seriously! He has no right of occupation. He has the legal obligation to act in the best financial interests of his DM under the POA. I'll take official OPG guidance, the legal opinion of my solicitor, and the outcome of the court case over the word of someone on the internet.

Did you catch the Op has been to the OPG and they’ve said nothing they can do?!

@tiredofworking galling as it is, he probably can claim the need for 'reasonable provision' to be made for him once the will applies or if there is an attempt to sell the house during your DM'S lifetime. However, if his share of the eventual estate would allow him to buy a smaller home he's unlikely to get more if he pursues a (very costly ) Legal route.
https://www.birketts.co.uk/legal-update/probate-disputes-when-children-dont-fly-the-nest/#:~:text=If%20a%20parent's%20will%20states%20that%20their,made%20a%20representation%20or%20assurance%20to%20them

So she needs to go back, as they've misinformed her on this occasion.

The only possible complication is if OP's DM still has capacity and is agreeing to it, in which case OPG won't get involved, as people with capacity are allowed to make poor decisions. Once capacity is gone, he has cannot reside there if she doesn't have the capacity to consent to it .

Tricky. In theory you and your sister could force the sale without his agreement, in practice it will be very hard to do without his cooperation especially as he has been there for so long. How much does she have in savings / other assets? If she has to self fund, how long will the other assets last?

does your brother understand his obligations as POA?

How does he have access to her bank accounts to pay bills etc? Has POA been enacted with the banks? Do you and your sister have the same accesS to her funds?

i think it’s the Court of Protection that deals with claims of POA being misused or breached, not OPG.

The whole thing is stressful, my mother’s rapid decline has been horrible. Fighting for CHC, dealing with my Brother’s entitled demands. I don’t see why there’s such nastiness on this thread. I’ve not done anything to remove anyone from house as yet. The legal action has come from him

The OPG investigates and takes things to the CoP.

I’m sorry OP, family situations can be very distressing. Try to take it one step at a time. You have time to work out what you do about your brother, and maybe the path of least resistance is the one to take for now. It’s tempting to deal hard with him, teach him a lesson - but it’s going to cause you a lot of angst as well.

Did he at least provide care for your mum while living at home?

But there isn't currently any legal action. He's just paid a solicitor to write you a snotty letter to scare you off. It seems to be working.

I think you need specialist advice here OP, as so many of these replies vary. The only person who can tell you is a solicitor who can go through her POA/assets. You can charge it to her estate I'd imagine?

Sounds really stressful OP. No advice but I would feel the exact same way as you

I don't think the letter was from a solicitor - OP said that her brother had signed it himself.

I would wait to see the CHC review OP and see the outcome and then review situation, especially if care home fees have to be paid

The poster who insists he has the right to occupy the property is wrong. The brother has no automatic legal right to stay regardless of how long he has lived there. If he is a licensee, which is the position of most adults over 18 living with their parents, he could only stay as long as his parents consented and they could withdraw that consent at any time by giving reasonable notice (usually 1-4 weeks). If his position has been formalised and he is a tenant, removing him is more complicated and takes longer, needing formal written notice and usually a court order.

If he has POA, he is required to act in his mother's best interests. It is not clear that continuing to occupy the property whilst making minimal financial contribution meets that requirement.

I would go back to the OPG and ask them to look again. This feels to me like a situation where they should step in. If they will not, it is time to talk to a solicitor.

You need to get proper legal advice. Try chatting it through with Gemini or whatever ai you like. Obviously check what it tells you but it should help you understand where you stand.

If the POA ‘jointly and severally’ for everything?

What did the OPG say? They don’t get to choose what they do and don’t have to investigate? If your brother is misusing your mother’s money they have to investigate.

Have you considered going to the Court of Protection directly? You and your other sibling could apply to get your brother removed as an attorney directly. It’s more tricky and expensive that getting the OPG to investigate but might be worth researching

Im definitely not a lawyer - you need proper advice.

We have a not dissimilar situation with my husbands family. My husband is choosing not to do anything about it though.

Yes, this.

If OP's DM still has capacity, and is currently consenting, then of course, he still has the right to reside there with her consent. If she doesn't have capacity, then he doesn't, as she cannot consent.

In any case, it'll be easier to prove that it's not in her best interests once CHC runs out (plus you probably need some breathing space), so I'd probably park it for now, and just look after yourself and your DM.

As others have said definitely seek proper legal advice yourself but having dealt with similar situations before previous poster is correct in saying that unless he is actually a legal owner or has a formal tenancy agreement to live there then he is just an occupier/licensee so he cannot just decide to stay there indefinitely and he cannot dictate that your mum’s money is used to fund that for him. You can pay a solicitor to draft pretty much any letter you want, it doesn’t make it enforceable or actually “real” for any purpose.

As attorneys you all are obligated to act in your mum’s best interest which means preserving her assets to fund her care, as you say CHC could be withdrawn at any time, and actually letting him live there paid for out of her money could well be seen as misuse of funds.

Check the specifics of the LPA but I would get a valuation done to find out what the market rate for rent would be and then send him a return letter requesting payment to your mum’s estate of that amount. That is actually your duty, as attorneys, to preserve mum’s assets for care whether by selling or renting the property. If he refuses to pay that actually only strengthens your case that he is acting improperly.

Absolute worst case you can propose mediation, shows you’re trying to work things out, and if all else fails apply to court. Unless your brother is dependent on your mum in a court recognised way for example disability or he has a document signed giving him lifetime use the property a court would side with preserving the assets for care.

During what must have been a hellish period when her health and mental health declined - was your brother caring for her? And try to be objective about this.

He wasn’t caring for her in any real way. If things were difficult he’d demand we go over. He never cooked her a meal. Never washed her or anything. When she was sectioned and admitted to hospital he refused to have her home with carers as he’d be left with her overnight. The relationship between them was very difficult and my mum stated numerous times she didn’t want to live with him. Obviously none of this is in writing.

What’s your plan going forward?

I will need to see solicitor and get advice. Just don’t want the stress of it at the moment.

What exactly did the public office say?

That there was no tangible evidence. We could go to court of protection at a cost I suppose. I’m just waiting to see if funding ends then a financial assessment will be carried out and that may force the issue of him leaving