Seller lacks capacity

UpTheCreekX3 · 2023-09-21T15:25:21+00:00

So to give some background, we have tried to buy a house 3 times since the start of 2022. Each time the chain has fallen through, costing us ££££ with nothing to show for it. This is the third time. All this is to say I'm feeling extremely low about the whole situation and could do with some positive input. DD is due to start school next year so we need to apply by Jan. The schools in our area are not great (secondary even worse) so we thought we'd move before she started about 25 mins down the road where they are all good/outstanding. Transaction was progressing and it looked like we'd be in for the deadline. We also have a baby due in March who currently doesn't have a bedroom so the pressure is on. And then... EA calls to say the seller at the top of the chain (the house our vendor is buying) has been found by his solicitor to lack capacity due to having dementia and they will no longer work with him. His sons don't have POA or any right to sell on his behalf, so looks as though we are stuck. Crushed by this as it was our perfect dream home and we were so close! And it seems so mad to me that everyone in the chain still wants to go through with it (him especially as he needs the money to fund his care) yet the opinion of one conveyancer has brought it all crashing down. So now I guess we'll have to make a decision.. do we stay where we are and try to make it work for a few more years? Go through with our sale and rent somewhere with enough space for new arrival and gets DD in the school while we keep looking? We don't have time to start looking from scratch, our buyers mortgage offer will soon expire. Can anyone see an angle on this that I haven't thought of/ offer any advice or just something to make me feel less shit? TIA

Twiglets1 · 21/09/2023 16:36

I would start looking at rentals @UpTheCreekX3

If you can find a suitable rental in the right catchment area and with enough bedrooms, go for it.

It's not ideal. But in this current market I wouldn't want to lose my Buyer. And you have good reasons for wanting to move. If you were in a rental with money in the bank, you would be such a good potential Buyer. You should be able to get a really great deal/house if you put yourself in that strong position.

Karmatime · 21/09/2023 16:44

How close are you to exchange on your sale? If it’s soon then I think in your situation I would go through with the sale and look for somewhere to rent. I know the rental market is very difficult and expensive but you can put any equity in a decent interest rate easy access account - there are quite a few paying around 5% - which would help with the cost.
No harm in looking to see what’s available to rent. House prices are likely to fall so you may find you can afford something better in a few months or your sellers may find something else and you can proceed.
I would try to avoid having to go through the stress of selling again in the current market.

Chersfrozenface · 21/09/2023 16:52

Can the seller's sons not apply for a Guardianship Order?

I don't know how long it would take or what it would cost them, but if the proceeds from the house sale are needed, they may have to take this route

Proudmum17 · 21/09/2023 16:55

Financial power of attorney took us about 8 weeks in January of this year. See if the person's relatives realise they can apply for them.

Original poster

UpTheCreekX3 · 21/09/2023 16:55

Thanks everyone, I think the rental route might be the best option but there is only one property available in the area at the moment that has the space we need that we can afford, so not a lot of options!

Also I find it hard on an emotional level to contemplate leaving our house that we've owned and lived in 8 years, DD was born right in the kitchen, to go into something that won't even be ours. But I think it might be the right thing to do so will just have to suck it up.

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Original poster

UpTheCreekX3 · 21/09/2023 16:58

I don't know if they can get power of attorney now as I think he would have to be of sound mind to give it iyswim? If he's not able to make the decision to sell his house I doubt they would let him decide that either but I don't know... otherwise they can apply to the court of protection to be made deputies (I've been doing my research!) but it takes 5-9 months

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LittleOwl153 · 21/09/2023 17:01

Is the vendor still in his home and looking for funds to pay homecare.. or have they / do they need to move to residential care?

If the latter could a rental arrangement be reached on the property you were buying.. I know this can be done if probate is needed mid sale for example.

Cactuslove · 21/09/2023 17:01

UpTheCreekX3 · 21/09/2023 16:58

I don't know if they can get power of attorney now as I think he would have to be of sound mind to give it iyswim? If he's not able to make the decision to sell his house I doubt they would let him decide that either but I don't know... otherwise they can apply to the court of protection to be made deputies (I've been doing my research!) but it takes 5-9 months

You're right if he lacks capacity to sell his own he will broadly speaking lack capacity to give someone LPoA. Deputyship is taking ages at the moment. Sorry OP a real shame.

wonkylegs · 21/09/2023 17:02

Chersfrozenface · 21/09/2023 16:52

Can the seller's sons not apply for a Guardianship Order?

I don't know how long it would take or what it would cost them, but if the proceeds from the house sale are needed, they may have to take this route

This can take quite a long time to get sorted at the moment
@Proudmum17 - you can't get POA once there is no capacity, you have to go down the guardianship route

It's a messy situation to be in.
I sold my mums property with POA and that was a right faff but I'd at least held the paperwork before mum lost capacity and many years before we needed to sell.

@UpTheCreekX3 feel for you my sibling is on their 3rd go at buying a house - last one fell through due to similar seller family issues
No good advice just sympathy for such a frustrating time and hope you get something sorted.

Proudmum17 · 21/09/2023 17:04

UpTheCreekX3 · 21/09/2023 16:58

I don't know if they can get power of attorney now as I think he would have to be of sound mind to give it iyswim? If he's not able to make the decision to sell his house I doubt they would let him decide that either but I don't know... otherwise they can apply to the court of protection to be made deputies (I've been doing my research!) but it takes 5-9 months

No that's the whole point of financial power of attorney- you have to show they're NOT of sound mind and copy in all relatives with interest who have to agree. We did it for father in law who has advanced dementia after his wife died we copied in his brother his daughter and all grandchildren it was straight forward.

DrySherry · 21/09/2023 17:04

Twiglets1 · 21/09/2023 16:36

I would start looking at rentals @UpTheCreekX3

If you can find a suitable rental in the right catchment area and with enough bedrooms, go for it.

It's not ideal. But in this current market I wouldn't want to lose my Buyer. And you have good reasons for wanting to move. If you were in a rental with money in the bank, you would be such a good potential Buyer. You should be able to get a really great deal/house if you put yourself in that strong position.

Good advice

Jackydaytona · 21/09/2023 17:05

DrySherry · 21/09/2023 17:04

Good advice

Show quote history

Yep
It's what we did 12 years ago
Worked out well

TerfTalking · 21/09/2023 17:11

As above, no chance of POA with no mental capacity. My DF had Alzheimer’s when we started looking at this to help make life easier for mum, the solicitor said that ship had sailed. We applied for POA for mum there and then, with her blessing, as she very much had full capacity.

We started the Court of Protection route for dad, but sadly he passed away before it was completed. It can take six months for a deputy to be appointed through the CoP.

This isn’t going to be a quick sale. The sellers can probably move their dad into care with social services approval, and will then have to pay SS back for the care cost retrospectively.

I would move into rented in the right area if you can OP and sit out the chain or drop out if anything else came up.

Original poster

UpTheCreekX3 · 21/09/2023 17:35

He has already moved into care, his wife passed away suddenly and he decided he didn't want to live in their house any more so put it on the market and moved into a home. I don't know whether that was just due to dementia or some kind of physical problem as well but nobody seemed to have realised the extent of it anyway. It's only the conveyancer that has formed this opinion but I feel like something very obvious must have happened for them to withdraw like that. Only possible option would be a proper assessment by a doctor or SW that disagrees with conveyancer but doesn't look likely.

We have suggested to our agent (he is also agent for the rest of the chain) that we could rent our sellers property and they could rent his until they're in a position to sell. I just can't see them going for it... our sellers are fairly old too, he has mobility issues hence moving into a bungalow. I don't know if they would want the hassle of being landlords etc when they can just install a stair lift

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KievLoverTwo · 21/09/2023 17:36

@UpTheCreekX3 make some calls to some agencies. Apparently a lot of rentals aren't even hitting RM atm. Ask to go on their 'first call' list.

Proudmum17 · 21/09/2023 17:58

You're right guys my husband just reminded we already had the first part of the POA before FIL lost capacity it was the second stage once capacity was lost that took 8 weeks. Apologies and thanks all who corrected.

happystrummer · 21/09/2023 19:36

The sons could ask for an interim order at court of protection for decision just about sale if he has no capacity to agree sale of property to fund care. No other way around it. That might be a bit quicker than applying for full deputyship but not by much probs

DepartureLounge · 21/09/2023 19:47

UpTheCreekX3 · 21/09/2023 17:35

He has already moved into care, his wife passed away suddenly and he decided he didn't want to live in their house any more so put it on the market and moved into a home. I don't know whether that was just due to dementia or some kind of physical problem as well but nobody seemed to have realised the extent of it anyway. It's only the conveyancer that has formed this opinion but I feel like something very obvious must have happened for them to withdraw like that. Only possible option would be a proper assessment by a doctor or SW that disagrees with conveyancer but doesn't look likely.

We have suggested to our agent (he is also agent for the rest of the chain) that we could rent our sellers property and they could rent his until they're in a position to sell. I just can't see them going for it... our sellers are fairly old too, he has mobility issues hence moving into a bungalow. I don't know if they would want the hassle of being landlords etc when they can just install a stair lift

Are you in direct contact with the seller and his family? If he has good days and bad days, it might be possible to arrange PoA with a different solicitor on a good day. Not confessing to anything, but I might know of someone who had to do that with a parent who went downhill very fast and had affairs that had to be got in order urgently. The PoA was then invoked only a couple of weeks later. In your seller's situation, that would also be the time to find a new conveyancer, of course. If the seller has managed so far, with the conveyancing solicitor only just now raising a flag, he's unlikely to be floridly out of touch with reality quite yet, in my experience. Worth a try, imo.

Original poster

UpTheCreekX3 · 21/09/2023 20:15

@DepartureLounge we did think of that but we are only in touch via the agent so don't know how bad he is really. It's possible he has good days and they just caught him at a bad moment but as his wife only recently passed away, I'd say it's equally possible she was covering for him a lot and no one realised he was so far gone/ he has deteriorated since moving out of his familiar house. Problem is we just don't know and it all depends on other people

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Original poster

UpTheCreekX3 · 21/09/2023 20:16

Just want to say thanks for the input everyone it's really got me out of my funk and looking at ways forward x

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cupofdecaf · 22/09/2023 12:37

Ideally you would still sell and buy but your vendors would rent somewhere on the agreement they can still buy the bungalow. Worth suggesting.

Original poster

UpTheCreekX3 · 22/09/2023 17:25

@cupofdecaf we have suggested that to our agent but not heard anything back yet. Our vendors are quite elderly themselves though and I get the impression they're quite old fashioned so not at all sure they'd be willing to not be home owners even temporarily

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Soontobe60 · 22/09/2023 17:39

Chersfrozenface · 21/09/2023 16:52

Can the seller's sons not apply for a Guardianship Order?

I don't know how long it would take or what it would cost them, but if the proceeds from the house sale are needed, they may have to take this route

I’ve just been granted Deputyship to sell my stepfathers house to fund his care, it took 9 months.

anniegun · 22/09/2023 17:44

Moving into rented makes the most sense. It makes it easier to buy and house prices are not rising so it is less risky financially. Chains are so fragile when there a few people involved and you have just seen how easy it is for an unforseeable curve ball to break them

SnowdaySewday · 22/09/2023 18:26

Your options are:

Sell to your buyers and move into rented.
See if your vendors will still sell to you and they move into rented or in with family. This is your ideal solution and I'd consider covering their excess costs to try to get this to happen as that may will mean less of a loss than you if move into rented and seek another property.
Don't sell, look for another property. As you say, this might not be what or where you want in relation to the school application.