Loan for Top up carehome fees

[Mike88]

If the mentally capable joint account holder asks the bank to remove one of the names the person to be removed has to give consent but if he/she is mentally incapable of signing the documentation (and the holder of the power of attorney is unable to do so) how will that be possible? The law/bank rules and practicalities seem to be far apart.

Three cases:

* If there is no POA in place, it will be possible by getting the Court of Protection to appoint a deputy for the person who has lost capacity - a deputy being a similar role to an attorney, but not actually appointed by the person concerned and so subject to somewhat stronger safeguards. The deputy can then give consent for the person who has lost capacity.

* If there is an ordinary POA in place, it has ceased to be valid and so the attorney is not merely unable to give consent for the person who has lost capacity, but no longer an attorney at all. So the solution is the same as in the first case - get the Court of Protection to appoint a deputy.

* If there is a Lasting POA in place, it is still valid, so the question is why the attorney is unable to give consent. If it's a temporary reason (and not too long-lasting), the answer is just to wait until they can. If it's a permanent or long-lasting reason, they either have good reason (i.e. that it's not in the best interests of the person who has lost capacity), in which case consent shouldn't be given, or they're no longer capable of acting as attorney, e.g. through having lost mental capacity themselves. The solution is then to get the Court of Protection to remove the attorney and appoint a deputy.

So the issue isn't whether it's possible - it is, as long as what needs doing is in the best interests of the person who has lost capacity. The issue is instead that it's rather cumbersome and expensive. But I'm afraid that's part of the inevitable cost of safeguarding them: all the solutions involving not telling the bank, etc, work much more smoothly, provided there isn't a 'noxious nephew Norman' exploiting them...

Gengulphus

Thanks. Cumbersome and expensive just about sums the situation up. No wonder joint account holders don't bother to tell the bank especially in cases where the Will leaves everything to the surviving spouse or those who will inherit where an ordinary POA is in place. I must confess that until reading this thread I had no idea that an ordinary POA ceased to be valid where loss of mental capacity is concerned. I guess I am not alone.

[Dod1010]

But it's a totally different situation where the joint account holder loses mental capacity. Because they are incapable of consenting to any money being withdrawn it means they have effectively withdrawn consent to the account being operated jointly.

When someone dies, as far as I know they lose mental capacity as well and are incapable of consenting to anything

Dod

[lisyloo]

I'm grateful for the information provided.
I have to say though that the fees are prohibitive for people on benefits so it's unsurprising if people don't bother.
We are currently having no issues with hospital, social workers and DWP although I've had to provide security info to DWP, but I could easily visit an old confused person in hospital and pretend to be a relative especially if they don't remember who anyone is.

[Lootman]

Cumbersome and expensive just about sums the situation up. No wonder joint account holders don't bother to tell the bank especially in cases where the Will leaves everything to the surviving spouse or those who will inherit where an ordinary POA is in place. I must confess that until reading this thread I had no idea that an ordinary POA ceased to be valid where loss of mental capacity is concerned. I guess I am not alone.

Yes, it's really a case of a law that designed to catch the odd and occasional case of fraud or theft, but the main effect is that it causes nothing but expense, delay, risk and inconvenience to the 99% of people who want to act genuinely in the interests of the person they care about. Of course you can say the same about a lot of laws. Or about the tedious security checks you have to go through at airports.

This is exactly the kind of situation where lying to the bank, or simply not telling them things, is morally justified even if it technically flouts the regulations. If I know for a fact that is the most ethical and caring decision to make, then ultimately I don't care if it is technically illegal. I'm just going to do it and worry about any consequences later.

It's always useful to know the law, but it's not always useful to blindly follow it. The law is just one of many factors to take into account when making decisions. In my case, when I was set up both as a POA holder and as the executor of the Will, the clear intention was that I would have seamless and continuous powers to act on behalf of the person in question. I therefore took the view that anything I did that was in the interests of that person was allowed. This included using my POA both to move monies around after incapacity set it, and moving other monies at and around the time of death.

I have no regrets and would do it again.

[lisyloo2]

Just thought I'd come back with an update.
We've visited 13 homes and found 1 suitable.
This is partly because of MILs disabilities.
Unfortunately it's full so we are still looking.
Social worker is pushing but not offering any practical alternatives (for example suggesting a place with stairs when MIL cannot pick up her feet).

GP has declined anyone at surgery to help with POA.

FIL fell down at 4am (has a pendant but doesn't wear it at night) and was found by carer in the morning.
He is being assessed for care at home as currently we're paying MILs carer privately to retain the same individuals.

No issue with top Up fees yet as places have either been LA rates or 4 figures and totally unaffordable.

[lisyloo2]

I've only just realised (doh) that if MIL inherits and has to pay for her own care then there could be no money left to pay off a loan (unless it ways charged before LA fees).

[lisyloo2]

Another update.
We have had a very difficult time finding homes (visited something like 20). This was largely because MIL needs are very high on the residential scale and many homes said they couldn't manage her needs. A few weeks ago the assessment was changed from residential to nursing which increases the budget and choice of homes although some nursing homes are (understandably) full of people who spend a lot of times in their rooms and are not very communicative.

We decided somewhere along the line that we not afford a top-up at all. We don't mind losing the inheritance of the flat (that FIL is currently living in) but the length of the liability is unknown, could well increase and could potentially need to be provided for FIL as well one day.

We have found a nice home for MIL which is close to SIL (closest relative) and within LA budget and she is moving today
FIL has been assessed financially for free home care and is being assessed by social services for his needs. Like many people he says he's fine and can do everything and fortunately the social worker understands that people overstate what they can do.
Unfortunately one of the people lined up to act for FIL in the POA is dying (65 years old) so we can't proceed on that, but FIL has agreed.

As an aside MIL & FIL are getting on very well, when they used to biker all day long when they were living together.