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???

But he could equally maintain it whilst paying market rent...

Is there a tenancy agreement? A contract? It's not a given that a son living with his mother would pay market rent, and no particular legal basis for two.POAs to force a contract for market rent on another POA in the absence of the homeowner.

As he has LPA, he may not benefit himself at his mother's expense. Living in his mother's home without paying anything resembling the full commercial rent is clearly benefiting himself at his mother's expense. That is the legal basis.

Unless your brother is joint owner legally, it is my understanding that your mum can still be expected to sell the house to pay for her care, and that on her death, her wishes as set out in her will still have to be followed. I don't think any kind of agreement would stop this happening unless your mum wrote a will expressing a clear wish that this one son inherit the entire house.

People seem to be struggling with that fundamental fact.

I don't think a will would change the facts. She can't even give him the house now. It's too late.

It becomes a 'given' if the mother requires care that owning a home takes her outside of receiving funding. POA's are legally obliged to act in the best interests of the person for whom they are attorney.
Without special circumstance the brother doesn't come into the equation.

It is what it is. The mother could have signed her house over to her son, she didn't. That's that.

Wow. I think you’re uneasy about the wrong thing here?

Did you hear back from the public office @tiredofworking regarding what evidence they need in order to look at the case?

They said it needed to go to court of protection, they wouldn’t get involved. Need to see solicitor about how to proceed, likelihood of success etc.

What reason did they give that they could not do anything and instead you just go to court?

I thought their involvement depended on tangible evidence?

You've glossed over the fact that the situation predates the POA and her departure.
Having LPA does not mean he has to detriment himself either. It's not as simple as you're pretending it to be.

No, I have not glossed over that fact at all. It is irrelevant. And I am not pretending anything. I am stating the law. And it really is simple.

If OP's mother had stated when granting LPA that he was to be allowed to stay in the house, he could stay there. If she has not done so, he has three choices:

• pay a full commercial rent
• buy the property for its current market price
• find somewhere else to live

The option of continuing with the current arrangement whereby he lives there but pays minimal rent is no longer available. Doing so is a breach of his duties as his mother's attorney.

When his mother dies, only the second and third options above will be available to him. He needs to realise that, sooner or later, he will either have to buy the house himself or move somewhere else. Quite apart from the fact he is failing in his duty as his mother's attorney, allowing him to continue to live in the house is not doing him any favours. It allows him to keep putting off the day when he will have to face up to reality. It is not his house and he is not going to get a free house.

You say he does not have to detriment himself, but he is not being asked to do so. If he was being asked to pay more than a full commercial rent, or pay over the odds to buy the house then yes, that would be putting him at a detriment. But that is not what is required of him.

I wholeheartedly endorse the post by prh47bridge below. The law is quite clear.
He will need court of protection consent even if he wishes to purchase the property from his mother if she doesn’t have capacity.

I’d have thought this was precisely within the remit of the public office of guardians. And it actually states that no evidence is necessary.

Just to update, office of public guardian are now investigating. Apparently they made a mistake in their original decision!! So, will see what comes of it.

@MildmagThis is the update that you've been proved to have been wrong. Are you decent enough to hold your hand up to your error and apologise?

Write to council and put council tax in his name. Contact water, gas, electricity providers tell tgem your mum is no longer responsible for bills and he is living there and bills are his responsibility. Tell him what you are doing.

We have told all utilities my mother is no longer living there. So bills will be coming to him now. He has never paid the £50 ‘rent’. Waiting for office of public guardian to investigate and hopefully act.

I'm anticipating this exact issue when mil dies. Following closely.

The issue arising when someone dies is rather different. In that case, it is governed by their will. The only options available to anyone living in the house is to buy it or move elsewhere (assuming the will does not leave the house to them or give them a lifetime interest). There would be no involvement from the Office of the Public Guardian. It would be a reasonably straightforward matter for the executors to resolve.

@prh47bridge

what happens legally when attorneys disagree? Especially when they have ‘joint and several’ powers? Can two outnumber one (as might be the case here)?

Jointly and severally are two different things. The donor should indicate if decisions should be made jointly, severally or either. Different requirements can be set for different decisions.

If a decision can be made severally, any attorney can decide on their own. Their decision will be valid even if the other attorneys disagree. If a decision must be made jointly, all the attorneys must agree - decisions must be unanimous.

If the attorneys cannot agree on an important decision, they can ask the Court of Protection for directions - basically making the decision for the attorneys. In extreme cases, it is possible to apply to have one or more attorneys removed.