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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My father in law in currently undergoing appointeeship through

Resolved Question:

My father in law in currently undergoing appointeeship through the Court of Protection with his local council due to his denentia. This is at least 3 weeks away from being completed. He is very adamant about wanting to move to be closer to his daughter (my wife) but the council say his state of mind doesn't allow him to sign a tenancy agreement. The Council have already taken over the payment of his bills and have removed all his savings as well. Is this allowed to happen before CoP is completed
Submitted: 2 years ago.
Category: Family Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if your father in law's GP agrees the councils assessment that your FIL lacks capacity please?

Joshua :

From what you say the local authority is applying for deputyship to act on your FIL's behalf?

Customer:

Hi Joshua,

Customer:

Not aware of the local Authority involving his GP. They say its appointeeship

Joshua :

Thank you. Have you discussed the matter with his GP?

Customer:

We were never included in any discussion relating to the CoP

Customer:

We haven't had any discussion with his GP as we think all assessments were completed by a CPN and she is now on maternity leave with someone else standing in.

Joshua :

Thanks.

Joshua :

if your father-in-law lacks capacity to make decisions himself then, if he has not previously made a power of attorney, an interested party can apply for deputyship.. Deputyship is similar to being appointed as an attorney however a deputy is appointed by the Court of protection as opposed to an attorney which is appointed by the donor himself (here your father in law). The problem with powers of attorney is that they must be made at a time when the donor has capacity.

Joshua :

based on what you say, what the council is proposing is not an application for deposition but rather an application for appointeeship. Being appointed an appointee is very different to an attorney or deputy. Appointee is limited to dealing with an individual's pension state benefits, claiming such benefits, notifying of any changes in circumstnaces and paying expenses from those benefits or pension income.

Joshua :

The local authority's not authorised to deal with monies other than those derived from pension or state benefits under appointeeship.

Joshua :

if your father-in-law has not made of attorney and as a family, you are concerned about the way the local authorities dealing with his affairs or you are concerned with regards ***** ***** father-in-law's welfare, you have two principal options:

Joshua :

with regard to his welfare, you can ask the local authority to assist you as a family and making decisions for your father what is known as a best interests basis. "Best Interests" decisions are decisions that can be legally made on behalf of an individual who lacks capacity under the provisions of the mental capacity act. What is needed to be shown for best interest basis to be made is that the decision is likely to be in the best interests of the individual concerned. Using the best interests decision is a way in which decisions can be made on behalf of individuals who have not made a power of attorney without the need for a potentially long winded court application for formal attorneyship or deputyship. the difficulty with best interest decisions can be when families disagree with doctors or local authorities. In the circumstances, the family has no power to legally override local authority or doctors decision without going to court to show that the decision in question was not in the best interests of the individual which can take time and cost money.

Customer:

That is how we understood it to be but as mentioned earlier, they have taken all his savings as well and allow him £100 money a week. We have received a letter from the CoP via the Council this week which relates to property and affairs

Joshua :

The alternative therefore is that the family considers applying for deputyship on behalf of your father-in-law. Close relatives who can demonstrate that they have his best interests at heart and are financially competent (i.e. are not subject to bankruptcy or dishonesty crimes) can make an application to the Court of protection to be appointed as your father-in-law's deputy. Where the court is satisfied of the above criteria and generally that the appointment is in the best interests of your father-in-law, the court can order one or more family members to be appointed as your father-in-law's deputy for either finance or welfare or both. once appointed as deputy, the deputy subject to an ongoing general oversight of the court in respect of their conduct but subject to this, are able to make decisions on your father-in-law's behalf as if they were being made by him himself and therefore can effectively take control from the local authority - something if your father-in-law is reliant upon local authority funding for ongoing care, the local authority will still be very much involved.

Joshua :

the position with regards ***** ***** father-in-law's money will need to be regularised. From what you say, I suspect the local authority may be seeking application which is wider than just that of appointee and may be seeking an appointment as your father-in-law's deputy for property and affairs. If this is the case, and the council is appointed, I will have legal control over his property and affairs which they are required to manage properly.

Joshua :

as a family, if one or more amongst you is keen to take a more active role yourselves, you may consider objecting to any existing council application to be appointed as deputy and instead making application yourselves to be appointed in this role. Providing the person or persons applying can show that they are not bankrupt nor have any dishonesty convictions, and can demonstrate a good relationship with your father-in-law, the court is likely to favour a family member or members over a local authority appointment. The difficulty with court of protection applications is that they are time consuming and incur fees, though such fees can be sought to be reclaimed from your father-in-law's estate.

Joshua :

If any of the close family members are minded to take on such a role, you may consider contacting the court in order to clarify the nature of the council's application and obtain an application pack for either objection and application for deputy ship or if the council has not applied for deputy ship, an application pack to be appointed deputy for your father in law.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

Thanks for the information, it's very helpful. Once last question, He has been offered a flat in a retirement home close to us and has till Monday to sign the agreement. What would be the implications if we were to bring him over and he signs the lease with the CoP not being finalised yet?

Customer:

We know he has the money to pay at leased a months rent

Joshua :

Do you believe in your own opinion he is capable of understanding what he is signing? i.e. would he understand what a tenancy is and that rent is payable etc or do you feel that is on balance unlikely at this point?

Customer:

We both believe he fully understands what the tenancy is and knows he has to pay rent each month. Currently he lives in a similar apartment which he owns so has an understanding of the system. Where he is, he pays a service charge twice a year (£2500 total approx) and hates paying it. This new apartment includes this and he understands this. Have spoken with the House Manager and she believes he understands what he wants to do and that he is adamant about moving

Customer:

ps I was a facilities manager for 15 years and fully understand leases. I have also written tenancy agreements which have legal acceptance with my local housing association

Joshua :

thank you. The council are note the "keepers of capacity" or to put it another way, the local authority does not have an absolute say on who does and does not have capacity. Judgement of capacity is principally, though not exclusively, provided for by appropriately legally qualified lawyers and medical personal - principally doctors but also care and nursing staff. in addition, the question of whether an individual has capacity or not is often not final. In many cases, the person will have capacity at certain times and not others - e.g. some people can be quite lucid for example in the morning and very confused in the evening. The legal test that is laid down is whether an individual is able to demonstrate that they can hold information in their head long enough to weigh it and then make a decision upon it.

Joshua :

if your father-in-law is capable of demonstrating this in relation to the tenancy agreement, then it follows that he has capacity to sign a tenancy agreement. However, the local authority will be required as part and parcel of their application to the Court of protection to produce a medical assessment concluding that he does not have capacity. It may be that they have not has obtained such a medical assessment at again, you can confirm the position with the court. Given that iit is probably fair to say that there are these questions with regards ***** ***** father-in-law's capacity, it may be appropriate to disclose this to the new proposed landlord though it is not a legal requirement unless you are asked to formally confirm this as part of the pre signing exercise.

Joshua :

ultimately, if the new landlord is satisfied that your father-in-law appears to understand what he's signing, and he has sufficient funds to meet the rent obligations there is nothing stopping him agreeing to a new tenancy. Do remember though that he should ensure he is not commiting to a new tenancy whilst still owing rent under an old one - i.e. so that he is not paying two sets of rents at once.

Joshua :

Has the above answered your questions satisfactorily?

Customer:

It certainly has. Sometime last year he was after changing his will and his solicitor wrote to his consultant who was unwilling to commit either way

Customer:

The apartment he is wanting to move to is private and he does own his current apartment

Joshua :

You can talk to his GP who is able to discuss your father in law with close family members if he considers it to be in your FIL's best interests. GPs will usually in my experience be helpful where it is in their patients best interests to be so.

Joshua :

Is there anything else I can help you with on the above?

Customer:

No thanks. Your advice has been very informative and we know the way forward. I will now leave excellent service feedback

Joshua :

Many thanks. If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

Thank you

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