Is my uncle able to rent out my nan's home?

Question

Hi, My nan Is in a elderly peoples home at the moment, she has server dementia.

she owns her own home which is left to my mother and uncle when she dies. My uncle is now in the process of renting out my nan's home we are just wondering is he legally aloud to do so as the house does not belong to him?

neither my mum or my uncle have power of attorney for my nan's finances and my nan is unable so sign any documentation as she barely even knows her own name let alone how to spell it .

Answer 1

Hi Tara.



No one can rent out your Nans place without her permission. The following explains the options - it is copied from a text book (edited)



=====================================



Mental Capacity Act 2005



If having considered that it is in Nan’s best interests for someone else to make important decisions on her behalf, the act enables Nan formally to appoint someone – a relative (perhaps her daughter, Mum), a friend or a professional person, such as a solicitor – as an attorney to make such decisions on her behalf. Nan will be able to do this through a legal document called a lasting power of attorney (LPA).



The LPA can be drawn up at any time so long as the person making it (known as the donor) has the capacity to do so. In other words, the donor has to be able to understand what they are doing. Regardless of when it is made, the LPA does not have any legal effects until it is registered with the Office of the Public Guardian. Like the Mental Health Act 1983, the LPA can cover decisions about the following:



health: for example, medical treatment

welfare: for example, where you live

money: for example, looking after your money

property: for example, whether you need to sell your house.



So, as long as Nan is able to understand what the LPA does, then she can draw one up to enable her daughter, or more than one of her relatives or friends, or a professional person, such as a solicitor, to deal with her affairs once she is unable to do so. If Nan or Mum wanted to find out more information about this they could contact the Office of the Public Guardian



What would Mum do if Nan’s mental condition deteriorated so far that she was not able to understand so was unable to make an LPA? This situation would also be covered by the Mental Capacity Act 2005. The act has made provision for a Court of Protection, which is a specialist court established to make decisions and appoint people called deputies to make decisions in the best interests of people who lack capacity.



Mum could apply to the Court of Protection to be appointed as a deputy to make decisions on behalf of Nan, if it is decided that Nan lacks the capacity to make decisions for herself. This would make Mum legally responsible for acting and making decisions on behalf of Nan. If you stop and think about this, it is very significant in terms of an individual’s rights and responsibilities. Both a court of law and another person, the deputy, have taken over the individual’s rights and responsibilities.



What happens if the person who becomes unable to make important decisions for themself has no family or friends able or willing to take on this role? Again, this is provided for under the Mental Capacity Act 2005 in the form of the Independent Mental Capacity Advocate (IMCA).



The Independent Mental Capacity Advocate service helps people who lack mental capacity and who don’t have friends or family who can support them with important decisions concerning serious medical treatment and housing. This provision supports and helps people who do not have the mental capacity to exercise their rights and responsibilities themselves.



=====================================



So, unless Uncle has been given authority by one of the above methods to rent the house out then he is acting without permission. This means that any rent from the property still belongs to nan and therefore Uncle must repay it to her. The chances are that the tenants in the property can not just be thrown out (email me for more info yα[e-mail]). Therefore, if Uncle is acting without permission then the tenants should be instructed to pay their rent to Nans bank account instead.

Answer 2

Two things to consider:



1) Is the house in the joint names of your aunt and uncle? If it is then he may have a claim to some rights on it which May (not guaranteed) or May Not allow him to rent it out; but he certainly could Not sell it or put it up as security against a loan or debt.



2) How are you paying for the nursing home? If her assets exceed £23000 then the Local Council won't be paying. Check that it's not a charge secured on the house.



The letting agent (your uncle should be using one, he's daft if he doesn't) should be able to clarify the exact legal position about uncle renting it out for you. If they can't then they are in dereliction of their duty of care and you could sue them for any losses. You can quote the Sale of Goods and Services Act and Professional Responsibility (Any expert is deemed to know more than a 'lay' person about the appropriate law. In this case the agent should know more about the law than your uncle and should refuse to rent the house if your uncle wasn't entitled to do it).



Are you sure that your aunt has not produced an "Enduring Power of Attorney" (sometimes called a Living Will)? This is a document that would have had to be created when she was fully in possession of her mental faculties, and witnessed (usually by a solicitor). It may have been created several years ago so ask your uncle if he can produce it for you.



Without this specific permission he cannot do anything which would deprive her of her rights of ownership of her assets. These include all her possessions, money, property, etc. ... everything that is in her sole name.



Any asset in joint names (e.g. houses, bank accounts, etc) are in a different position. Some of these allow either of the parties full and unrestricted access to the asset, other arrangements require that both of the people sign and agree the action. You must check to see what is the position of all your uncle and aunt's "joint" possessions.



If it transpires that your uncle is not allowed to let the house then he must stop it. But if your aunt didn't produce an Enduring Power of Attorney document then you will have to apply to something called the Court of Protection.

See www.publicguardian.gov.uk/about/court-of-protection.htm). Or you could Google for the "Public Guardian". (make sure that you only select sites with gov.uk in the address or you'll get a pay-to-use service).

This court will issue an Order regarding the property. Note that you'll be well advised to see a solicitor about this (only a couple of hours work so it shouldn't cost you too much) and that the proceedings may take a few months because of court queues.

You should read this government web site because it is very clear and describes what the legal position is regarding mental incapacity.

Answer 3

Your Mum needs a Solicitor to sort this out. The DHSS can force a sale on your Nans home to pay her care fees. Your Uncle needs to wait until they both know the legal situation.

UK.

Answer 4

I would talk to the Citizens' Advice Bureau in your Town just to clarify the legal position.

Don't forget that if your Nan is receiving financial support towards her Care Home, then any income from her house may have to be taken into account when calculating her charges.

Answer 5

No, legally he is NOT allowed to do so, not without POA. Your mom could go to court, get nan declared unable to make her own decisions, get POA, and stop him (or rent it out).

Answer 6

It's illegal unless he has some right over her property that your nan gave him.