Power of attorney

[catsrcool]

My mother took out a equity release in 2007 for £25000 an d the repayment due is £85000. My mother is dying of MND in a nursing home and has been there for more than 6 months. I have just received a letter that gives me 14 days to vacate the property. If they had given me more warning I would have put the house on the market sooner. Apart from being insensitive I have looked at the contract and they are within their rights. My question is if I put the house on the market the proceeds are legally my mothers. I do however have power of attorney so can I buy somewhere else to live in her name so I am not effectively homeless?

[Barmaid]

1. What PoA do you have? Is it a general PoA, and Enduring Power of Attorney or a Lasting Power of Attorney? (If either of the latter two has it been registered with the Court of Protection?)

2. They might be within their rights within the contract, however, in order to obtain possession and get you out, they may need a Court Order, depending on your rights of occupation - take legal advice urgently and take a copy of the contract with you.

[VHG]

These are the things they dont tell you when they have the nice "Equity Release" adverts on TV or on the radio or internet.

You dont say as such, but I assume you live in the house (your only place of residence), but dont own any part of it?

[dacortin]

2/3 years ago, when acting as executor for my Mothers estate, I had a similar, but not so brutal as yours, letter from the lender. After 'phoning and discussing the matter with them it transpired it was a 'form' letter. On discussion with a more senior person, it was readily agreed that i would have 6 months minimum to dispose of the property because of the very dire state of the property /mortgage market at that time. I kept them informed as to my efforts (Agents details, number of enquiries etc.) We ended up having a sensible relationship that culminated in them being extraordinarily helpful when the eventual buyer wanted to complete in very short order. Hope that helps.

[catsrcool]

When my mother signed the contract I had to agree I thought to vacate within 6 months of her death not after six months in a nursing home. In answer to the type of power I have it " Lasting power of attorney property and affairs"

[catsrcool]

The bottom line is can I sell the house and use MY MOTHERS money to buy somewhere smaller in her name.

[Barmaid]

If your mother has lost capacity you can only perform limited actions under the LPA unless it is registered. That is why I asked the question.

Theoretically, under the Mental Capacity Act, as an attorney you can act with all the powers of a beneficial owner. However, the difficulty you have is that if your mother dies and you are not the sole residuary beneficiary of the estate, the residuary beneficiaries will want the house sold. If you are the sole residuary beneficiary (and it includes the house - ie the house is not specifically bequeathed), I do not foresee any problems, other than the fact that if she has to make a contribution to care home fees, the LA may seek the sale of the "new house".

This particular case is extremely fact sensitive. I really can't emphasise enough that you should take legal advice from an appropriately qualified lawyer.

[Barmaid]

Namechange, what ARE you talking about?

[stevepett]

No.
As attorney you have to act in her best interests not yours.
You should, however, complain to the lender on you mothers behalf that they are not acting fairly and ask for longer.
I imagine that you do not have the lenders permission to live in the house, so they may not be sympathetic.
Sorry!

[catsrcool]

Thanks all. I have taken professional legal advice and the house goes on the market next week for £369995