Council say elderly mother with dementia cannot be added to tenancy?

Hi Ravi,

I don't know the answer, but I would think it is important to know if the Daughter has invoked Power of Attorney and can act on her Mother behalf.

The reason the elderly lady cannot be included in the AST is probably due to the fact that an AST is a contract and under contract law the lady would be deemed to lack the capacity to be a party to a legally binding contract. That having been said the council may be able to accept that she is resident (and your tenant would not be over accommodated for their purposes) if you could permit her as an authorised occupier whilst the tenant remains (and complies with all the terms of her AST). It appears that the elderly lady has freed up council accommodation, so perhaps the housing department will assist with this dilemma and point you in the right direction so that everything is compliant in respect of them being able to fulfill their obligations as well as your tenant being able to remain in her home with her mother without being penalised. Good luck, hope it all works out well for you all.

Dear Ravi,

It will depend on if you benefit from a registered Enduring Power of Attorney or a more recent Lasting Power of Attorney (Property) if either of those hes been official started (registered) with the Court of Protection it is likely you can exectute the tencncy on your mother's behalf.

If you have niether, it is a question of degree of capacity your mothe has. See the Mental Capacity Act and the multi stage test to determine capacity. If she still has sufficient capacity make sure you obtain professional advice and obtain an LPA that covers BOTH property and personal care needs.

I big warning however, if you do not have an appropriate LPA for care needs you may find Big Brother (in the form of the council social services) taking control of your mother's affairs.

If the mother has an official diagnosis, then she will likely be deemed lacking capacity to sign a legal agreement (as mentioned above). However, with that diagnosis, she may well be known to the social services department. In the hope the two departments talk to each other, you might be able to make some headway that way. As above, check whether the daughter has invoked the relevant Power of Attorney. Also, with this condition the mother might be considered to be a dependent.

Whoever has the power of attorney for the lady can enter into a tenancy agreement on her behalf. Thus, although the lady with dementia may lack sufficient mental capacity herself, she will have someone who is legally authorised to act on her behalf (or someone can apply to the court of protection for such a power).

Ravi
I can speak from extensive and painful experience on this.
I am going to talk about the financial Power of Attorney of which there are two types but they are identical in law.
1. If the lady with dementia has previously granted Power of Attorney to someone then this must be registered with the Court of Protection at some point.
The Attorney has a legal obligation to register loss of mental capacity with the Court of Protection once they deem that the person is no longer able to manage their own affairs.
Let's be very clear on this point. This is not an option. It is a legal duty.
2. If the Attorney has not previously registered loss of capacity with the Court of Protection then they must certainly do so now.
3. Once the loss of Capacity is registered with the Court of Protection then in Legal terms, the Attorney effectively becomes that person and must be treated as such by all agencies, be they banks, building societies, councils or anyone else involved in her financial matters.
Now I am quoting my understanding of the law from long and painful experience and it has been one hell of a fight for me over many years to force institutions to comply. Sometimes I have failed in my efforts because there is no cure for dumb and irresponsible.
But the council can be beaten into submission.
Now let's take a second scenario.
If the person with dementia has not previously granted Power of Attorney to someone then matters get very messy indeed.
The person wanting to become the Attorney must apply to the Court of Protection to do so.
The Court of Protection will then appoint an officer of the Court to intercede in the matter.
This can be a long drawn out process and expensive but there is no other option.
I can't quite remember what happens next but I think that it is possible for the Court of Protection to agree an Attorney be appointed.
Frankly because of this legal mess in the second case there is a good deal of bending the rules in granting a Power of Attorney with regards to the person's mental capacity to do so.
I could write "War and Peace" on this subject.
Even if you get the Power of Attorney matter sorted into a more conventional state there will be massive on-going problems.
The biggest problem is that the UK law on this matter is pretty clear but each institution interprets it in their own way and fronts it up with the lowest calibre of staff.
This could be hell even if a decent solicitor is involved.
For several months I had two solicitors and my local MP fighting one of the many Power of Attorney battles that I have fought.
However once a council has been beaten into submission, I think that the solution will stand the test of time.
The same certainly cannot be said for financial institutions.
I hope that helps a bit.

Dear all,
Thank you very for your kind advise. The matter has been concluded now. The council has agreed to pay the full rent ie. 50% each. I am quite happy with the decision.
Once again many thanks .
Regards
Ravi