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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10398
Experience:  Barrister 17 years experience
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My mother has been diagnosed with Alzheimer's. My brother's

Customer Question

My mother has been diagnosed with Alzheimer's. My brother's partner has been acting as her financial adviser for several years and, since the onset of her illness, has been managing her finances through her online bank details.
I have been told several times that I should move quickly to ensure that Power of Attorney is in place before it is too late, however both my brother and his partner are insisting that my mother is incapable and refusing even to try. This leaves them in full control of my mother's finances and assets.
Could you advise me please on whether I can insist we try for POA and, if she is deemed incapable, what would be the next steps?
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. I regret to say that once your mother has been diagnosed as having Alzheimer's, it is too late the get a Lasting Power of Attorney put in place. She now lacks legal capacity and no right-thinking doctor would sign the necessary Certificate to attest to her psychological state that she has legal capacity. Any doctor who would do so is very foolish. Instead, you should get a Deputy appointed in accordance with the rule of the Court of Protection. The chosen Deputy would have all the powers given by a Power of Attorney to handle your mother's financial affairs and to deal with her monies. I would certainly recommend this course of action as anyone now dealing with her monies in the absence of some form of safeguard, in law, does not have lawful authority to do so. The brother's partner is acting unlawfully in dealing with her money now that she has Alzheimers. I would advise you to apply for the Deputyship yourself, if you wish to control the finances. Alternatively, you can suggest some appropriate person to act. Be aware that a deputy cannot profit from their position as Deputy.
Expert:  Buachaill replied 1 year ago.
2. Here is a link to the government website where it sets out what you have to do to apply to become a Deputy. This is the proper course of action here.
Expert:  Buachaill replied 1 year ago.
3. Here is the link https://www.gov.uk/become-deputy/apply-deputy
Customer: replied 1 year ago.
Thank you. This is really helpful. Reviewing the site my inclination would be to nominate my brother a co-Deputy. If I do this and he refuses to comply - is there any legal reason why I cannot make the application in my own right?
Expert:  Buachaill replied 1 year ago.
4. The consent of the person who is nominated as a Deputy is required. So you should only put your brother forward if he is willing to act. However, there is absolutely no difficulty with you apply in your own right, should you so wish.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10398
Experience: Barrister 17 years experience
Buachaill and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you again. If I may ask a follow up - I have now informed my brother that we should seek deputyship to which he has agreed. It is clear however that this process will take several months. He has suggested that his partner, who is a professional financial adviser, should continue to manage my mother's financial affairs alone. The argument is that until a legal Deputyship is put in place he is bound by confidentiality requirements not to pass on any financial details to anyone.For various reasons I am not willing to consent to this and have indicated that :a) I consider there to be a conflict of interest between his professional responsibilities and his personal animosity towards me;
b) I consider his continuation in the role to be unlawfuland that he should step aside immediately and that we either appoint a neutral party to this role to which we have equal and separate access or that I be given access to my mother's financial affairs as soon as possible so that I may carry out my responsibilities re her care and treatment.Both my brother and his partner are now refusing to respond to me at all - while retaining full control of her finances and denying me any.Is there any recourse in law which would require them to respond positively to my requests?
Expert:  Buachaill replied 1 year ago.
5. Firstly, you need to realise that your brother and his partner are acting unlawfully in continuing to manage your mother's affairs when she has Alzheimers when there is no Deputyship put in place. The only protection for your brother and his partner is the fact that he can retrospectively validate what has been done when he becomes Deputy. Here, you can attack the fact they are dealing with the money without lawful authority as your mother lacks legal capacity. Alternatively, you can withdraw your agreement that your brother be appointed Deputy and instead seek that yourself or someone else be appointed Deputy.
6. However, the simple approach would be to litigate and seek a Declaration that your brother's partner has no lawful authority to deal with the financial affairs and get an injunction preventing her from doing so pending the appointment of a Deputy. This would stop the plan in its tracks. However, be aware that would then mean there would be no way of dealing with your mother's financial affairs or accessing money until a Deputy was appointed. In point of law, any agreement to manage your mother's financial affairs until a Deputy is appointed in unlawful, as no one has lawful authority to do so as she lack capacity. So keep this in mind.

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