Trusts And Bank Accounts With Severe Learning Disability

[iloveglee]

I'm looking for some advice for a friend, who has a brother with a severe learning disability (fragile x), and lacks capacity.  She lives with him to ensure he is ok, and a trust was set up by their mother to make certain there was money to do this, i.e. keep the home in good order (the house is now part of the trust), to pay the bills and to pay someone to take care of those needs he cannot manage himself.  M friend does all this, but cannot seem to get the trust to release funds to allow her to do so. 

She doesn't know who the trustees are (it's managed by lloyds bank), and is constantly passed from one person to another when she tries to speak to someone, all of whom speak down to her as though she also had a learning disability.  

She doesn't know where to turn, and I admit I'm not sure myself what she can do.  She has no money to pay a solicitor.  In addition, her brother, apparently has an isa in his own name, with a substantial amount of money in it.   She can't draw on it, and as he doesn't have capacity neither can he.  They just keep telling her to get power of attorney, but he doesn't have capacity to give it.  So rock and a hard place. 

I'd be grateful if there's anyone out there who has any ideas as to what she might do next.  Sadly, the option I suggested that she tries to speak to someone face to face isn't going to work as they are based in London and have no local offices.  

[DDIL]

It's not possible to set up power of attorney for someone who has lost mental capacity. Instead, members of their family will have to apply to the Court of Protection to be appointed as their deputies.

[DDIL]

I can't seem to do any links but if you google the following it will put you in the right directions.

Deputies - legal information - Mind

Mental Capacity Act 2005

[iloveglee]

Thanks for that.  Yes, this is what I believed you would have to do.  Someone I know looked into going to the court of protection, and it's extremely expensive and complex.  

As she has no money, I think it's likely this won't be happening.  I wouldn't have thought the trust would advance money for this purpose.

What I find quite odd is that he even has a bank account in his own name.  He would not have set it up, his mother must have done it, but how was she able to do this given his inability to consent.  As far as this side of it is concerned, I have suggested she try to make an appointment to see a manager at the bank in question, it's a high street bank so I would have thought they'd have someone in one of the branches with a position of seniority.  

[DDIL]

Is it possible it was set up whilst he was still a minor.

I would suggest as you do, make an appoinment to see the bank manager and see if he can suggest any way forward.

Surely the trustees must give him an allowance and cover the costs of looking after him? 

The only other option I could think of is involve the media about how she is unable to care for her brother due to banks witholding his money!

 

[Barmaid]

If your friend has benefits, she should be able to seek a fee remission to apply to the Court of Protection for an Order that she become the Deputy.  In any event, the normal rule is that the costs are paid out of the incapacitated person's assets.   The CoP is far more user friendly than any other Court service and unlike the County Court you do not have to constantly pay hearing fees.

Unfortunately, it is quite likely that your friend has no legal authority to talk to the bank about his beneficial interest in the trust.  Consequently, the way forwards is to apply for Deputyship.

[Tuvok]

If she knows which solicitors were used to set it up, then could she ask them to tell her who the trustees are?

Could she be one of them?

[Barmaid]

Tuvok, my best guess is that Lloyds are actually the trustees.  Years ago the banks did a lot in the way of helping people draft Wills and Trust and they were then appointed as trustees.  But without any legal authority to obtain information on behalf of the brother, Lloyds (or in fact any solicitor) will not give the info.

[iloveglee]

In answer to some of the points made.  The bank account that is the main issue was not set up when this person was a minor.  Which is why we can't work out how it was even set up in the first place when he would not be able to set it up, or give consent for someone else to do this.  We do wonder if his mother actually had deputyship but this isn't known.

I don't think this trust was set up by solicitors, it was all done through LLoyds private banking, in any event she has no idea who set it up, all she knows is her mother did this after she was divorced from their father, about 30 years ago.  It was part of their divorce settlement.

She doesn't know what the trust deed says and theoretically the trustees could argue she has no right to even speak to them on his behalf.  She has had a quote to apply for deputyship, which is about £1500.  The money the trust agreed with her to pay for updating the inside of the house, and some outside repairs has not been forthcoming, so what are her chances of getting them to pay out for this. 

To be perfectly honest I think she needs legal advice on her own behalf, but cannot afford it.  One question I do need to ask her next time I see her is whether she has legal advice attached to the house insurance, or if she is in a union which might be able to give legal advice, although as this is not a matter of anything related to employment maybe not. 

She does not have a learning disability, but is not the sharpest tool in the box and frankly is really floundering.  I am trying to help her as much as I can as she has no one else, she has a son but he's only in his early twenties, so like most young men of his age, knows nothing of such matters.  

 

 

[Ninnynanny]

Most solicitors will offer a free first 30min interview. That could give proper legal financial advice, to hopefully set the ball rolling.

[iloveglee]

I have suggested that she tries to find one of these solicitors locally that offers a free half hour of advice.  I also suggested that she complain but this doesn't fit the financial ombudsman's criteria.  

It would seem that their mother has left her with a whole world of problems.  I know why, she wanted to protect her son's trust money for his benefit for the rest of his life, and his sister is quite capable of squandering any money that comes into her hands, she has form in the past for this. \

Nevertheless, the trust is protected, but it has left her with not knowing really what she can and can't do, and major issues getting straight answers, sometimes even getting them to return her phone calls.  They are not acting well, but there appears to be absolutely nothing she can do about it.

[iloveglee]

I have found that there is something called an appointee. Someone who is designated to assist with managing benefits. I wonder if the mother was one of these. So what happens when the appointee dies. 
 

it seems these are obtained via DWP and don't cost. So I wonder if my friend has this without realising?