Your brother suffers a serious head injury in a road accident.  He owns his own home.  You and your siblings talk about what to do for the best and it is decided that you will move in with your brother and spend some of your own money to extend the property, so that he can be cared for in his own home.  Nothing is put in writing – but it’s family so it’s ok and everyone has agreed.

Everyone is grateful that you are keeping an eye on your brother and that your parents are able to help care for him too. Your brother has lost mental capacity but you and your mum reckon that it’s ok if he signs some paperwork to put his house into joint names with you and your husband.  This means that when your brother dies the house passes to you and doesn’t go into his estate.  Because the property has increased substantially in value you have landed a bit of a windfall and suddenly your other siblings aren’t very happy about the situation.  They will inherit far less than they would have done otherwise. Their solicitor points out that your brother couldn’t consent to transfer his property into joint names because he lacked capacity.

Permission for the transfer should have been obtained from the Court of Protection, which safeguards adults who have lost mental capacity. Everyone accepts that you should get back the money that you have put in but you think that you have done nothing wrong and the house is yours.  This is a case of financial abuse – probably not deliberate and one can have some sympathy for the sister who moved in with her disabled brother.  But none the less when someone lacks mental capacity, family members aren’t allowed to make decisions for them without some oversight.  They can’t just say “that’s what they would have wanted”.

Important decisions about where adults who lack mental capacity live and their finances must either be made by an attorney (if a power of attorney was made by the individual before they lost capacity) or by a court appointed deputy.  Otherwise it’s likely that the transaction in question will be set aside.

Contact our financial abuse specialists Sarah Young and Samantha Hirst on 0800 8 60 62 65 for more advice and assistance.

 Sarah Young Director – Litigation