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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, My mum has a Lasting Power of attorney in place with myself

Customer Question

Hi, My mum has a Lasting Power of attorney in place with myself and my 2 siblings as attorneys. She is in a care home and recently instructed us to sell her home and divide the proceeds between the 3 of us. She has plenty of money in her account and sufficient income to cover her foreseeable care needs. We are now being told by a solicitor that we cannot gift such large amounts to ourselves even if it meets my mums wishes. Can you please advise
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 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 mother still has full mental capacity please?

Customer:

Not really

Joshua :

thank you. Finally may I ask how her care is being funded? Is she privately funding herself or is the Council contributing? If she is privately funded, would her instruction to sell her home and divide the proceeds between you mean she may have to rely on council funding in the future?

Customer:

She is privately funding, she's 80 year old and has plenty in the bank with sufficient pensions to virtually cover the cost of her care - it would take approx. 20 years to diminish her savings enough to require council funding

Joshua :

thank you. On that basis, there is unlikely to be any challenge from the Council on the grounds of deprivation in respect of her instruction - basically, the council can object to gifts been made by individuals were such gifts will mean that public funding is likely to be required as a consequence but based upon what you say, I think we can discount this aspect.

Customer:

my sister has just divorced and as part of the settlement sent her solicitor a payment for her ex which was from the gift. He refused it saying we couldn't gift ourselves such an amount

Joshua :

if your mother had for mental capacity, there would be no difficulty in her giving this direction and making this gift to the three of you. A person is subject as above able to make whatever gifts they want during their life. From what you say however the difficulty is likely to arise on the basis that your mother lacks for mental capacity. If this is the case, she may be unable to give the required consent. Capacity is not absolute and many people do not fit into the definitive box of having or not having capacity. Some people, capacity will change even for example between morning and night. obviously, for others, for example those with advanced dementia and so on, they clearly would lack sufficient mental capacity to make significant legal decisions such as the above. You will know your own view on your mothers condition. If you believe she does potentially have sufficient capacity to understand the nature of the gift she proposes, then you could seek an assessment of capacity and if she is found to have sufficient capacity, then the above gift can be made

Customer:

ok. Who would we ask to do the assessment?

Joshua :

an assessment of capacity in circumstances such as your mother would typically be carried out by a psychiatrist or some other clinician that specialises in elderly mental care. There would be a fee for his consultation as the service is not provided by the NHS. If he assesses that your mother has sufficient capacity to understand the nature of the gift she proposes then the gift can proceed on the basis that she makes the gift herself. If you cannot publish that she understands the nature of the gift she proposes by virtue of a mental capacity assessment then there are unfortunately significant problems as the solicitor who has advised he suggests...

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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