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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34581
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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After 18 years as a couple my husband and I married two years

Resolved Question:

After 18 years as a couple my husband and I married two years ago in December. The main reason for the marriage was that our house is now worth quite a lot of money and he has had several spells of alcohol related illness over recent years so if he were to die I would not have to worry about IHT as the main beneficiary. However, our house is owned by him, not me. He bought his property prior to meeting me. Recently my husband arranged a meeting with a company called 'Will Power' who drew up his existing will and power of attorney. The reason for the meeting was that he wanted to make a slight adjustment to the amount of money bequeathed to his two sisters. However, the result of this meeting was that on the advice of the will adviser who visited my husband while I was at work the lasting power of attorney for both his health and welfare and property and finance were changed from myself to his sisters. I do not understand why this happened as my husband says he was advised to do this by this person from 'Will Power'. However, because of my husband's diminished mental capacity and confusion he does not understand the full implications. I do believe that I remain the main beneficiary of his will. Over the last ten years my husband has has had treatment including quite long stays in hospital for alcohol related brain conditions the symptoms of which are similar to advanced stages of dementia. I have looked after him during all of these illnesses and his sisters have not been involved in his care or wellbeing at all. Contact with t hem is minimal and he doesn't see them from one year to the next. Therefore I believe they would be at a loss to know what to do in the event of the poa for both health & welfare and more particularly property and finance. However, I realise you cannot comment on this. What I am anxious about is in the very likely event that my husband becomes ill again my position will be if if power of attorney has to be activated? I believe that the sisters and their husbands will not only have to decide how he will be looked after and his medical care they will also have full access to my husband's bank account and even be able to sell our home. As my husband no longer thinks in a rational way he says he doesn't understand why I think I will be left vulnerable in this situation. I know both of his sisters but never spend time with them or their families and I therefore cannot be confident that they will act in my husband's or my best interests in this situation I believe the action has been taken by my husband as he has been hurt over the years by their lack of interest in him. He has deep seated psychogical issues about not been accepted within his own family and this somehow gets him involved again with his family and I am fully understanding and happy for him to do this. In the circumstances please advise regarding where I would stand in the event of a POA , particularly the property and finance part of it, I would be very grateful as I don't know whether I should be worried and if so why. Mary Millar

Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Does your husband actually have mental capacity - is he still able to make such decisions?
Clare
Customer: replied 3 years ago.

Hello. It is tricky. He masę the decision based on information he thought he understood. However what he thought was that he signed over only health and welfare. He told me that the other document was a copy and i has to Point out to him it was a separate document covering property and finance. When he realised this he understood to a point but as he he was charged 500gbp he is now not prepared to amend this. Days he doesn't think its a problem and refuses to acknowledge implications so i have to know now vulnerable this leaves me. My husband is being treated for a quite serious Braun disorder snucia impairs his understanding, he van never grasp information fully. He doesnt't know James of people he Has regularnie contact with and his memory of events or simple information is very diminished. However the Man who advised him to tale this course has told me he is od the opinion mr Millar fully understood what he was signing. He clearly didn't but see there is nothing i can do. I have an appointment to consult his gp as i am worried about where this is leading.

Hope this helps. Realise i am rambling.

Thanks

Mary

Expert:  Clare replied 3 years ago.
Hi
Have you asked the consultant dealing with him whether he believes he has capacity?
Clare
Customer: replied 3 years ago.

I did speak to the consultant and he says he believes Mr Millar understood what he was signing. When I responded that I do not believe he did he said nothing but that I should refer to Mr Millar about that.

Customer: replied 3 years ago.

Still waiting for advice regarding the property and finance lasting POA? Do I have sign up for the free trial before you can answer?

Expert:  Clare replied 3 years ago.
Hi
My apologies - I meant have you spoken to your husband's medical consultant on the issue
Clare
Customer: replied 3 years ago.

I have an appointment to consult with the GP on Monday. However, his regular GP who has been caring for him since all this started about 12 years ago has recently retired and so it is a new GP who can only refer notes and they do not know the extent of his diminished capacity. He was under the care of a consultant for a long time but not anymore as they have his condition under control, i.e. fitting and inflammation of the brain. I really need the information about whether the family will be able to clear out the bank account and sell the house from under me. If this iss the case then I would be vulnerable position If this is confirmed in black and white then I have something to work with.

Expert:  Clare replied 3 years ago.
Hi
Just to check - are all his account sin his sole name or in your joint names?
Clare
Customer: replied 3 years ago.

All accounts in his sol name.

Customer: replied 3 years ago.

All accounts are in his sole name.

So if you can just let me know exactly where I stand if it becomes necessary for the POA to be enforced. I have been told the executors will have full access to his bank account and have the power to sell the house. What does this mean for me as the wife residing at the house?

Expert:  Clare replied 3 years ago.
Hi
In that case I have to be honest and say that this could indeed create a very difficult position for you unless all of those accounts are now transferred into joint names.
The person holding the POA cannot actually sell the house while you are in it - although if your husband will not change his mind you would be wise to register your Matrimonial Home Rights - it is easily done.
In addition if there are serious health issues it would seem odd for you not to have the right to make the necessary decisions
I think you will need to discuss the practicalities with your husband.
One option if he still wishes his family t be involved is for you to be added as an attorney.
As things stand if the Company do try and Register the Power you shoudl object a sit is frankly unworkable given the lack of involvement
Please ask if you need further details
Clare
Customer: replied 3 years ago.
Many thanks for your advice which does
confirm my understanding of the position. Would you please advise on how I would register my matrimonial home rights. Also who I would approach to raise the objection re. the inappropriate choice of executor?
Thank you
Expert:  Clare replied 3 years ago.
Hi
It is hot his choice of Executor which you are challenging - that is not a problem - it is his choice of Attorney
A Power of Attorney has to be Registered and you will have to be given Notice.
Inform the person who drafted the Power that you will object to the Registration
http://www.seatons.co.uk/legal-services/power-of-attorney/how-to-object/
You can Register your home Rights using this form
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352448/HR1.pdf
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you for the links and the very useful advice which I shall follow. I will complete your survey and be happy to instruct you if the situation arises.
Mary Millar
Expert:  Clare replied 3 years ago.
Hi
You are most welcome - I hope all goes well
Clare