Capacity assessment needed. Has anyone experienced this?

[confusedmate]

Mil gifted us a few thousand a few years ago. This was when she sold her house. She's now in a care home and the solicitor dealing with our house we're buying said she needs a capacity assessment otherwise the sale can't go through. She has enough funds for her care home for a few years. If it came down to her running out we'd have the sale of our house or we'd have her live with us.

Has anyone been through this? She desperately wants us to move too as our area isn't brilliant. She has mild dementia but is definitely with it regarding finances etc.

Has she already given you the money? If so how does the solicitor know this? If she's giving you money to avoid having to pay for the care home then that will be an issue.

Is the assessment to ensure she had capacity when she gifted the money?

The solicitor has the bank statements. Dh mentioned she's in a care home now. She's been in to sign to say she gifted it but this was earlier in the year when we were going for another house. If dh hadn't mentioned the care home they probably wouldn't have asked.

Poor dh feels shit now. We were so happy to have found this house.

I don't know? They'd need a time machine. Capacity can change anyway. Through illness and medication etc.

Hers can change when she has a uti.

She still has plenty left for her care home.

Why does he need a capacity ax now if she sold her house and gifted you money years ago, it's irrelevant now. How can they assess how she was years ago, the assessment is for her current capacity. Whose bank statements has the solicitor got, why did he want them. How long has she been in the care home, did she move in when she sold her house, are they thinking deprivation of assets.

@MissMoneyFairy she's only been in the care home a few months. She was renting a bungalow to be nearer family. It's our bank statements to prove we have cash for the house.

When did she sell the house and gift you the money, I don't see why he is asking, its been and gone and if there were questions about her capacity at the time her solicitor and bank would have intervened. Is there or was there power of attorney in place. Who signed all the house sale, rental and nursing home paperwork. Is he worried she was coerced or money laundering, how much money was it.

It's 50k. 3 years ago. Maybe they think she was coerced yet they didn't in February? She insisted on us having it wishing we hadn't now.

Dh will be devastated if we lose this house. I'm worried about him tbh. He's taken this badly. She'd be fuming if she knew what's happening we'll have to be careful.

He has financial poa.

That’s more than ‘a few thousand’ - you are trying to minimise it.

I suppose compared to what she has it is.

I'd ask him why he needs a capacity ax when she gifted you the money 3 years ago, she's already said it was a gift so it seems odd, who has been managing her money. He can visit her for a chat with her and the staff to ask her himself. Did she have a capacity ax when she moved to the carehome or had one since. If the money has been in your bank for three years just ask him why its an issue now.

@MissMoneyFairy yes dh will ask tomorrow. Thanks.

Whether I think you're trying to pull a fast one is neither here nor there but surely the solicitor who witnessed her signing the deed of gift should have assured him/herself of the lady's capacity to sign.
I'm intrigued as at some points you say 3 years ago, then you talk about February.

Did he have financial poa when you got the money or was she looking after her own finances?

Not sure I understand. How long ago did you get the money

Do you need to sign anything, can't you just write someone a cheque or transfer it and they bank it

I guess the first question is, does she have memory problems and if so, how severe?

If she has capacity now then it's all fine. You'd have a pretty good idea if it's likely she has capacity or not.

I suspect the things they're worried about it deprivation of assets. My job is to assess people who live in care homes and some people are there for years, it's not unheard of for people to be in care homes for 10 years plus.

They also may be concerned that she lacked capacity when she gave it to you. Although it would be tough to prove, if she has capacity right now they can reassure themselves that's not the case. That is to safeguard your MIL.

No he didn't then.

She gave the money 3 years ago. She signed for another house that fell through in Feb. Well it recently fell through it was a long haul ( tenants in it) She wasn't in a home then.

So she bought a new house and signed the contract in February? What does that have to do with you and your house?
The £50k had by then been in your bank for 3 years. Where was your mum living for 3 years? And what triggered the solicitor to ask for bank statements going back 3 years?

No, the OP almost bought a house in February and the MIL signed the form to say that she'd willingly gifted it then.

The OP said she was living in rented accommodation.

Right, my mistake.
But even so, at the time of gifting £50k should have triggered the money laundering regs and questions/proof would have been needed, there must be someone who could testify as to capacity at the time.
The solicitor who dealt with the historic house sale?

Tell the solicitor he needs to read the Mental Capacity Act. He doesn't appear to have a clue. Capacity assessments are decision specific i.e. a person needs to make this decision, do they have the capacity to do so? She made this decision 3 years ago so, unless there is medical evidence indicating a general impairment in her decision making back then, it's impossible to assess what her capacity was.

I'm guessing that the solicitor wants to know if she has capacity for this specific decision now so they can get them to sign the gift form again, and/ or rule out coercion or deprivation of assets.

If the MIL doesn't have capacity (obviously to make this specific decision) they may choose to get the court of protection involved if they have concerns.

The solicitor should be the one doing the capacity assessment, but, I assume they asked the OP and her husband for an indication of what her capacity may be (for example if she isn't able to manage her finances and the OP's husband is doing this it's likely she also lacks capacity for this decision too(