Planning for the future is important in all aspects of life, but perhaps none more so than when getting older. With an ageing population, mental impairment and capacity issues are becoming ever more common.
There are 2 ways to deal with this issue. The first and preferred method is for a person who is ageing or who may have an early stage diagnosis of mental capacity illness such as dementia or Alzheimers to give lasting Power of Attorney to 1 or more individuals who are trusted to manage affairs if and when the mental capacity issue gets worse. The second method, in the absence of a Lasting Power of Attorney, is to apply, where mental capacity becomes an issue, to be appointed as a deputy at the Court of Protection.
In the absence of either of these steps, complications can easily arise which can turn into legal disputes within families.
As a recent case shows, if that happens, aside from causing long term schisms in family relations, there can be very real financial consequences.
£50,000 legal costs order for 1 party, £20,000 for the other
In the case of JS v KB & Another, the parties in te dispute were brother and sister. Their elderly mother had become mentally incapacitated and was being cared for by the daughter. Initially, there was an informal agreement for this to be the case and there was no dispute that the daughter was looking after the mother well. The dispute arose because the daughter managed to sell the mother’s property and buy a replacement property in the name of herself and her husband. It was unclear, in legal terms, how the daughter managed to convince the conveyancing solicitors that she had legal authority to sell the mother’s property but clear that the brother was not informed.
The brother became suspicious of his sister’s activities and solicitors became involved. there was protracted correspondence achieving little between solicitors and court proceedings were instigated by the sister seeking a formal appointment of her as the mother;s Deputy. The litigation in turn then also involved the independent the Deputy now appointed by the court.
The outcome of the case was that the sister was effectively removed from managing her mother’s affairs. The brother was also criticised for turning a blind eye initially and taking little responsibility for his mother’s care. Of total legal costs of some £70,000.00, the sister was ordered to pay the majority but the brother also ended up with a significant legal bill.
The upshot of this case is clearly that advanced planning is by far the best option. Also, a primary care giver cannot simply assume that because he, she or they are sensitively and fully looking after the day to day needs of a relative that this gives them the right to make financial decisions or take control of finances. this is precisely why there are 2 kinds of lasting Power Of Attorney – a financial affairs LPA and a Welfare LPA.
If you are considering entering in to a Lasting Power of Attorney or want to apply to the Court of Protection to be appointed as a Deputy, I can help. I can also offer assistance if you are concerned about any aspect of a relatives care and the legal position associated.
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