Elderly father wants to give sale of house to his daughters

[sidley]

My wife's mother died at the end of August last year. We were able to persuade her father to move to a special mobility flat (rented) 1/2 mile away from us. As my wife and her sister have power of attorney they sold his bungalow (E. Sussex) just before Xmas.

He has a full set of marbles but is incredibly frail/ 80% blind (unable to move even around the flat w/out electric wheelchair). Anyway'after the sale he wanted to give my wife and her sister the bulk of the money from the sale. When we talked to the solicitor dealing with the sale, she advised us strongly not to do that, as being attorney's you cannot benefit financially from their father's money. This she said, could cause an investigation if they found out and remove you as attorneys as well as having to repay the money.

The money would be very useful to us as we have a massive shortfall in our mortgage indemnity policy, which reached maturity last year. So far the bank have given us a 1 year extension on interest only that finishes the end of October. Otherwise we would not be bothered about when we get the inheritance (it's all under the inheritance tax - £650,000 - threshold anyway)


I can understand this if he wasn't able to maker his own decisions (he's as sharp as a tack), but as he put it " I don't need the money - it's no use to me". His income from pensions etc., outways his outgoings considerably.

N.B. The family have decided that when he can no longer live semi-independently (he has an army of carers as well as us going in several times a day), he will come to live with us til his death. So, not going into a home.



My question is was the solicitor correct? If so, what do I suggest to my bank, can I ask them for another year extension?



cheers to everyone

PS forgot to mention he is almost 98 years old


sidley

[2222]

The advice you have received so far is spot on, as you cannot dole the money out to yourselves using the POA. However, the solicitor may not have realised that your dad still has his marbles.

I think I would get your dad to see a solicitor. He can explain to the solicitor that he wants to make this gift and he can get independent advice. The solicitor can go to your dad, if transportation is a problem, but he's going to want to speak to your dad in private.

[sidley]

Thank you 2222,

Unfortunately, my F-in-L won't see anyone. Not even the GP or nurses. He sees his condition now (think Prof. Stephen Hawkins in his wheelchair) as a badge of shame. He won't even see his grandchildren anymore, he is extremely embarrassed about the way he looks.

So, no to a solicitor going in. He has got so many medical problems that in the last 4 months we thought he was going to die 3 times. Somehow, even without Drs. or nurses, he managed to recover each time. Of course soon he will go down again and get the relief from old age he so desperately wants.

No, we are wondering with our mortgage whether as we are carers for him could ask for an extension again. Sympathy from the bank!!! Are there any guidelines that the bank have to follow?

The bank have told us we need to talk to their re-mortgaging dept. I don't think they want to throw us out, but make more money from us. We are trying to avoid that if we can. I have looked into this and with all the charges surveys/valuations plus if we are able to settle the mortgage ( inheritance) a month after starting it we will be in line for hefty penalties.

I mean if we have to go down that route, so be it. We are trying to avoid £1,000s in extra costs.

All your help is greatly appreciated.

sidley

[des8]

? Deed of gift
Needs to be witnessed independently (?visiting carers who could testify to FIL's capacity to make gift without coercion?)
Are your wife and sister in law likely to be the only beneficiaries of his estate when he passes? If so unlikely anyone will report matter to office of Public Guardian anyway.

Problem could arise if he has to go into a home.
I appreciate your intentions are to care for him yourselves, but none of us know what the future holds.
If it becomes impossible for you to care for him there may be a problem meeting care home fees, and his gifts might be regarded as deprivation of assets to avoid the fees .
You could then be liable for those fees!

[2222]

How capable is dad of signing two cheques?

[sidley]

Hi, been away for a while dealing with my 91 year old mother, had to leave my wife to deal with her dad alone.

With the PoA my F-in-L cannot sign any cheques. His cheque book and cards were taken away from him.

Yes, my wife and her sister are the only beneficiaries in the will (he has shown them a copy). We have thought about the fact that - i.e stroke or other - that may exclude us from caring from him, but.
Earlier this year his GP and someone else- can't remember who she was - came around to do a Pathway Plan (aka end of life plan) with him. In it he has expressed no further medical intervention (treatment or drugs etc) that would extend his life. This is after seeing his wife of 71 years die an undignified death (his words) in hospital after several strokes.

This Pathway Plan, apparently, is a legally binding document so if he did have a stroke or whatever he has given his wishes that he is not to be treated or fed/watered if he cannot do it himself. Just to make the end as quick and comfortable as possible. He also stated that he is not to be taken out of his flat unless it is to come to us to die. No hospital/ no nursing home. He now has pneumonia and is refusing any treatment for it. His lungs sound terrible, so we don't think it will be long now but, he is a tough old thing - even the doctors and nurses are surprised he is still going! He is surprised he is still here!

any help gratefully appreciated.

sidley

[2222]

I meant literally signing the cheques. You make out the cheques, and he just has to sign them. Can he still do that?

If yes, that's him making the gifts, not your wife using the POA.

It's still open to challenge, eg your wife has unfairly influenced him to sign the cheques, but it's better than using the POA.

[des8]

As your f-i-l's attorney it is the girls responsibility to make financial decisions on his behalf when he is unable to do so himself. This must always be in his best interests.

You say your f-i-l still has full mental capacity to make decisions for himself.

If your f-i-l is proved to have capacity when he gifts them the money they will be able to accept the gift and should be able to satisfy the court should there be any repercussions.
According to the Mental Capacity Act 2005 an assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.A doctor should be able to give you an opinion on the matter and if you get that in writing it should be enough to satisfy anyone who questions the gift and how it was given

From the little you have posted it seems there is no one who would object, (however we don't know if there is any other family member who may make a claim on the estate after your f-i-l passes) so I doubt if the Office of the Public Guardian would become involved

[sidley]

Thank you for your help.

@2222
He no longer has a cheque book or cards in his name. Although the account is still in his name the only 2 signatories allowed are his daughters. The cards/cheque books, for his account, have their names only on them. Bank statements have his name on them. I guess that when someone loses their capacity to operate their finances they are barred from accessing funds.

@des8

He is partially sighted (20%) vision. His wife always did the money/banking side of things, until her stroke, so he is only too happy to let someone else do it for him. He claims he can't see well enough to read statements etc, but he can still read the Radio Times(with difficulty)!
So, I think he just doesn't want to have anything to do with money. He has full mental capacity but is incredibly frail.

There is no one else in his will - 50/50 to each of his daughters. All his brother/sisters are dead and so are all his in laws.

No what spooked us is the manner in which the solicitor, for the sale of his house, told us under no circumstances to give themselves the partial inheritance he had suggested 1/3 of the sale to each daughter - he would keep the other 1/3. But she had never met my F-in-L, she only dealt with his 2 daughters.

We also need to change the bathroom v. soon (at our house) to make it more accessible for him, Big room but it doesn't have a W/C and has a L shaped bath/shower, which would need to be changed. He has said he will pay for the alterations, so I don't suppose there should be any problems with that?

Thanks again.

sidley

[des8]

The solicitor is, IMO for what it's worth, being ultra cautious.
This is not unusual because the unexpected does happen, and if he gave you contrary advice and the gifts were made and accepted and then things went wrong you could possibly make a claim against him.

The same applies to the bathroom alterations, but as they are for his benefit there shouldn't be any problems

[sidley]

Many thanks for you help DES8

sidley