Wills and council house

J

janedoe06

Registered User
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135
Just wondering if anyone has any advice for my mother here

Background
She sold her own land years ago and is now living in our other farm , Husbands land

Farm is registered in Husbands name

Got house from County council/Bought i think 20 yrs ago under similar scheme to affordable housing/Shared ownership

Husband is suffering from Depression, She runs and does everything for him
so he would not be in a fit mind to fill his name on anything , Will etc

Mam thinks now due to their ages it would be a good idea to let the farm go and move closer to the Local town
Currently in the country

What are the implications>
My father is really in no fit state to discuss anything , Everything even visits to the doc are done with mam present as my father cannot remember anything or explain anything , (part removed by author !) father very vulnerable , and some unscrupulous people have taken advantage of him in the past !

she is legally married to him but what if she feels its time to sell up
Would there be a claw back from the council if she sold this as part of the Farm ?
Also as the Farm is in my fathers name , >? sure he should be the one that is legally meant to sign any forms for sales etc ??

What is the best thing here

They are old so obviously , the most least stressful way round this would be the best ?
 
In fact - this is the solicitors nightmare. The assets are your fathers - he is the only one who can deal with them. If he does not have the capacity to instruct someone, then a solicitor cannot and should not act.

A good solicitor will advise your mother that, in the absence of your father recovering from what sounds like clinical depression and making his own decisions, that she either separates from your father and a Court will make such necessary orders as she needs to move on or alternatively that she has your father made a Ward of Court. These are both extremely stressful processes.

A naive solicitor - perhaps newly qualified or a bit green might witness documents signed by your father and act on your mothers instructions notwithstanding that everything is in his name.

A poor solicitor will facilitate the smooth transition of assets from husband to wife ignoring the patent inability of the client to properly instruct. The potential here for a negligence suit is huge.

It is a very difficult situation. Your mother needs proper legal advice on her circumstances to appraise herself of the problems and potential solutions.

mf
 
i have edited out the part about my father and solictors so as not to offend anyone ,
i did'nt mean it as an insult to any profession . but my father acts very innocent and childish so it would\nt be in his best interest to deal with any legal issues
 
Thanks , for your comments.

I dont think my mother would think about making my father a ward of court,
as it would only hurt him even more and he would really feel hes lost all control over his life,

I know its not a nice situation, and i dont want to be the one to tell mam, that her well intentioned ideas and plans are probably fruitless.
As she has had a stress ful few years i suppose we all had.

Thanks for your advice ,
i'll advise her to get her own legal advice about this
 
go to a doctor and a solicitor and look into getting an Enduring Power of Attorney drawn up.

Your problem here is not what'll happen when he dies (as your mother has statutory rights to some of his estate under the Succession Act) but what he does while he's alive:
(a) somebody unscrupulous could take advantage of him.
(b) if he goes completely ga-ga he won't be able to deal with his property or possession as he won't have the mental capacity so it'll be all in limbo till he dies.

An Enduring Power of Attorney is essentially "a document providing for the management of a person's affairs in the event of their becoming mentally incapacitated." (from courts.ie)
 

From experience as a professional (medical) and personal (in the case of my own parent) I understood that where there is a question as to the cognitive functioning of an individual (e.g. if they are considered by a doctor to be "non compos mentis" and experienced by significant others as unable to make clear decisions and understand the consequences) an Enduring Power of Attorney is no longer an option at that stage as this Power requires the individual's agreement.
 

Well that's why you'd seek a medical opinion at the time. The test for mental capacity is as follows: that at the time the document was executed the person had the mental capacity to understand the effect of creating the Power.

It's important to bear in mind that you can't just draw up an EPA whenever you like: death and/or impending lack of capacity to deal with your own affairs must be imminent.

Someone might be slightly ga-ga (if you'll excuse the vernacular - no offense meant) but often has "good days" or moments of clarity. People can draw up Wills etc in such instances too. But any legal professional would get a medical opinion in such an instance so as to protect a vulnerable client (and themselves from a negligence suit!).
 
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