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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Can a person (my brother) with Lasting Power of Attorney -

Resolved Question:

Can a person (my brother) with Lasting Power of Attorney - financial affairs, live rent free in our mothers property for 4 years while she was still alive, when I was led to believe it was being tenanted & rent used for paying care home fees & he is still living there 22 months since our mothers death. Solicitor he appointed supposedly acting on both our behalf's has consistently ignored my concerns saying she is only dealing with probate, other matters not relevant?? Probate has now been granted & I am being pressurised to sign docs to proceed. I have written refusing as my brother is trying to purchase property on April 2013 valuations & has put money forward to make purchase & for me to be receiving far less than I thought because of care home charges being claimed back against the property by the local authority. Please help!
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 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.
Who is named as the Executor of the estate?
Clare
Customer: replied 2 years ago.

Both myself & my brother executors & beneficiaries

Customer: replied 2 years ago.
Relist: Other.
still waiting for answer, fee went through immediately though!!
Expert:  Clare replied 2 years ago.
Hi
My apologies for the delay I have been off line
When did your late mother lose her Mental Capacity?
Clare
Customer: replied 2 years ago.

I have not seen any documents to confirm this. However, My first piece of correspondence was from a solicitor my brother engaged at the time informing me they were acting on his behalf re my mothers financial affairs, advising me that her property was now a let & occupied by a tenant & the rental income received was being applied towards the cost of my mothers care home fees. Letter dated 17/03/2008.

Customer: replied 2 years ago.
Relist: I still need help.
Customer: replied 2 years ago.

I have not seen any documents to confirm this. However, My first piece of correspondence was from a solicitor my brother engaged at the time informing me they were acting on his behalf re my mothers financial affairs, advising me that her property was now a let & occupied by a tenant & the rental income received was being applied towards the cost of my mothers care home fees. Letter dated 17/03/2008.

Expert:  Clare replied 2 years ago.
Hi
My apologies for the delay.
That is a very specific letter.
What evidence do you have that in fact this was NOT the case
Clare
Customer: replied 2 years ago.

I don't know exact dates of capacity loss & have never seen any docs. However,I know by experience of being with my mother & that she had to undergo statutory assessments in order to receive home care services originally, deteriorate, then fulfil criteria to be given a place in a dementia unit within care home. I do not dispute anything at this stage. Please address original question. Thank you.

Expert:  Clare replied 2 years ago.
Hi
My apologies - I meant the letter was specific about the property being rented out - what evidence do you have that this did NOT happen - this is of course germane to your question
Clare
Customer: replied 2 years ago.

I received letter from solicitor dated 26/3/14 that my brother had advised her "that the property was only let out for a very short period of time & this did not prove successful". She went on to say "Michael (my brother) has been living in your mother's property for the last four years hence did not pay any rent as this was your mother's wish". This is what I queried. If my mother did not have capacity & my brother had LPA for her financial affairs then how could she make such a wish & how could this be called him acting in her best interests?!

Expert:  Clare replied 2 years ago.
Hi
Did you write and ask that?
Clare
Customer: replied 2 years ago.

As stated this is what my original query is about, yes!! Solicitor said can't comment/deal with those matters only dealing with probate as of when appointed. Answer question has my brother abused his power of LPA or not?

Expert:  Clare replied 2 years ago.
Hi
On the face of it he may well have done so.
If your mother did not have mental capacity then she could not have consented to this arrangement.
In those circumstances your brother was under a legal duty to act in the financial best interests of your mother - and his living there rent free could not be seen as being in her financial interest
You need to write a formal letter asking for an explanation of his behaviour - and say that until the matter is resolved then no further steps can be taken with regard to the Estate.
You can also consider reporting the matter to the Official Solicitor - although the fact that your mother has died may make them reluctant to take the matter further - but abuse is abuse no matter what
https://www.gov.uk/report-concern-about-attorney-deputy
You can also offer to negotiate with your brother using mediation - if he agrees to pay the Car eHome fees you may chose not to take the matter further
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Hi, Exactly my point re my mothers capacity therefore could not consent to that arrangement. I understand re his legal duty & common sense contradiction re living rent free not being in her interest. However, probate solicitor keeps saying all this that went before my mothers death is not their remit, they want to settle probate, otherwise we should either go for mediation or find different separate solicitors. I can't afford that!! Latest letter also stating that i was advised when I suggested my brother had abused his power of Attorney that 'an attorney has a duty to act in the best interests of the Donor but does not have any duty to preserve money for the estate'. Please answer is this correct?

Expert:  Clare replied 2 years ago.
Hi
Yes that is of course correct - however I do not see how that is relevant
It did not benefit your mother for him to live in the property rent free - it only benefited him.
At this stage the way forward would appear to be mediation
Clare
Customer: replied 2 years ago.

Hi Clare,

My brother has already raised money that solicitor is holding on his behalf as he wishes to buy my mum's flat (no discussion with me) & accounts solicitor sent me show care home fees have been paid to the local authority & the amount of inheritance due to me. This inheritance is less than expected because of the fees accrued while he lived rent free & not renting out the property. So how do I get out of this & would mediation cost a lot & who does it? Linda

Expert:  Clare replied 2 years ago.
Hi
You need to write to the Court Of Protection
You can read more about mediation here
http://www.mishcon.com/email/website/HFarticlePCB.pdf
Clare
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