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Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34886
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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I moved back with my parents in 2008 after divorce and they

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I moved back with my parents in 2008 after divorce and they subsequently became infirm and I had to look after them. Dad had COPD so was on permanent oxygen which I had to manage. I had to deal with dad's toilet accidents, get up in the middle of the night if there was something wrong with the oxygen machine and he often fell out of bed, do the washing , shopping etc. When he died in 2013 mum began to develop dementia and some months after dad died had to be moved eventually into a Rest Home. I have power of Attorney and the Guardianship Office have told me in the last month I should be paying mum rent for living in her house. This has never been mentioned before. I can't afford it. I was medically retired from a banking job in 2007 as i had a major breakdown (they were at fault) and have been on anti depressants for 14 years. I believe the Guardianship think I just moved in and lived here as a freebie. I pay all the bills. Sorry to go on but can you advise?

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

What income do you have?

Customer: replied 1 year ago.
Pension from RBS given early on medical grounds at £876 per month. I have started a small business selling collectables mainly on Ebay. 1st year profit £3500 gross. Trade slow now. Because of the drugs I take some days are difficult for motivation. I cannot afford any rent. Nothing was mentioned when the Power of Attorney was executed and I considered this my home.
where I have been now for 8 years

Are you using your own funds to keep the house going?

Customer: replied 1 year ago.
Everything apart from the house insurance comes out of my pension and business profits.
Customer: replied 1 year ago.
I have actually renewed the house insurance today by direct debit and did wonder whether I should set the direct debit up from my account but wasn't sure but I could do it

Are there sufficient other funds to pay for your mother's care?

Customer: replied 1 year ago.
She is in one of the best homes in Torbay at £2770 per month that my sister and I picked so she would be very well looked after. Needless to say we could have gone down a much cheaper route. It is eating into her investments but she has approximately £68000 left which is an so far untouched investment. She gets income of £477 a month from this , has her State Pension, £193 a month which is 50% of dad's pension before he died and attendance allowance of £370 or so. To be honest I was going to work my socks off to try and meet the shortfall but am worried about the stree. I feel close to another breakdown and an abusing my tranquillisers dosage due to this sudden news that I should pay rent.
Customer: replied 1 year ago.
Can we continue this tomorrow? Bit late nowIf so how do we do it?

I am out until this evening but will resume then - in the mean time please do not worry it is going to be fine and you will not have to pay anything other than nominal rent 9which you already are)

Customer: replied 1 year ago.
Thanks Clare

What exactly has the Guardians office said?

Customer: replied 1 year ago.
Hi Clare, thanks for coming back to me.This is what they said ( I'm not taking any advantage , have lived there for 8 years and looked after mum and dad) :Not taking advantage of your positionAction
You are to start paying rent for staying at Barbara Singleton’s property.Reason
Although living in Barbara Singleton’s home rent-free was an arrangement you had in place while she had mental capacity, as you are now an active attorney this creates a conflict of interest. I have contacted a number of local estate agents and found rent for the property averages £1000.00 per month. If this figure seems incorrect, please provide valuations from estate agents to show what an accurate figure would be.This is because the law (chapter 7 (60) of the Mental Capacity Act 2005 Code of Practice) says:
“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They also must not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

How have they become involved?

Customer: replied 1 year ago.
Dad felt that Carer's from a company who came in 4 times a day for 15 minutes of so to get him up, wash him, empty the commode, put him to bed were too expensive (he was tight where money was concerned) so my sister who was a carer took over and he paid her £500 month for a similar service. I was around pretty much all day and night to sort the other stuff out as mentioned before. Mum also gave me some money to by stock for my business to get it off the ground. The Guardianship picked up these transactions and wanted to know more about them. Without the £500 my sister would be homeless as it covers rent and mum and dad wanted her to have this amount even after dad died. I am paying money to mum's account when I have it from profits although it wasn't a loan., £30k. I think mum's bank Barclays advised the Guardianship and they investigated. It has taken ages but they say £500 to my sister should stop and I should pay rent and continue to put money to mum's account when I can re the money she gave me. Naturally as I'm doing that I cannot afford to pay rent as well. Reading the Mental Capacity Act clause above presumably if I wasn't an Attorney I wouldn't be 'taking any advantage of my position'. It is impossible to pay any rent and if they threatened me with court I'm not sure what I would do mentally or otherwise.
Customer: replied 1 year ago.
What is 'nominal rent' you mentioned? Should I be paying the house insurance, the only thing I'm not paying?
Customer: replied 1 year ago.
Sorry to go on but I'm very worried about this

So the bank alerted the Office of the Guardian?

Customer: replied 1 year ago.
I think so. I can't think of anybody else and I haven't asked
Customer: replied 1 year ago.
They have finished their report and are happy to leave me and my sister as Attorneys

How will you cope with the Care Home bill when that investment runs out?

Customer: replied 1 year ago.
I have no idea. I would hope to generate income from my business and pay money into her account to meet the monthly shortfall. I suppose the house will have to be sold. We have not approached the local authority yet to see if they can help but funding is being reduced all over. We could move mum to a cheaper Home but would only do that when she is at a stage where she doesn't't know us anymore so the move wouldn't be traumatic for her. She is 82, her mother lived until she was 100 ! Mum is in poor health with reumatoid arthritis causing mobility problems (although she has started to roam around the Home which means she manages to get downstairs somehow. The staff tell us that, she denies it or doesn't remember when we ask her). It is horrible to say but with no quality of life I wish she would die but thinking that way really upsets me and makes me seem callous

If the £500 to your sister ends will she still support you remaining in the house?

Customer: replied 1 year ago.

There is no basis on which the payments to your sister can be saved I am afraid.

However you can write to the Guardian pointing out that in fact you came to live with your parents after your divorce and were invited to once more make your home with them and you did.

The fact that you then cared for your parents was never part of the arrangements - it was simple what you did as a loving daughter.

On that basis you respectfully ***** ***** this is NOT a case where market rent is payable - you are simply continuing to care for your joint home as you always had.

You should also confirm that when the time comes you intend to sell th house to continue paying for her upkeep

Customer: replied 1 year ago.
Hi ClareI'm male although I people often read Mitchell as Michelle ! Thanks re your last response . Is there any law I can quote to the Guardianship to support your advice as, I suppose, they could refuse to accept what you have said. I don't think the Guardianship know I've been here for 8 years and might think I moved in when mum was moved to a Home. I'm not sure though. At the moment I'm keeping contact with them to a minimum as it upsets me too muchYou said something about a nominal rent before. What was that referring to?Would the fact that there has been no formal rent agreement made act in my favour and could I claim squatters rights as a last resort ?

I am so sorry for the gender assumption - it shows that both the genders need to move away from that!

I am certain that they do not know how long you have lived there - because if so it would not have been raised before.

The nominal rent you are paying is any repairs etc that you do using your own funds

You do not have squatters rights - there are no such thing anymore!

Customer: replied 1 year ago.
Many thanks for that. Do you think that will do the trick or is there anything else that could be added?

That should be sufficient

Customer: replied 1 year ago.
Thanks Clare. If I need to how do I get in touch with you again?

Just ask for me in the title of the question - I shall get it

Customer: replied 1 year ago.
Will do if necessary ! Many thanks for all your help ClareMitch

You are welcome - I hope all goes well

Clare and other Family Law Specialists are ready to help you