Q. My father is 83 and thankfully in very good health. I live abroad but see him regularly. I am aware that for the past few months he has been coming under pressure from my brother to sign over the family home. I understand that my brother wants to get a mortgage and build a small extension. My brother is married and has a young child. My dad wants to do right by his son, I am worried that my father will be left in a position where he can be put out of his home or into a nursing home. As I live abroad, it is not possible for me to get home very often or see a solicitor. What can I do?
Dear Reader,
This can be a very difficult issue. If your father retains the legal capacity to make decisions, any final decision as to what to do with his own property remains his and his alone.
Your father would have to have separate legal representation, and such a solicitor would inform him of the pros and (substantial) cons of divesting himself of his family home.
Any solicitor dealing with a voluntary transfer such as this would have to ensure that your father had that legal capacity, and further to ensure that he was not coming under any ‘undue influence’ from any person. This generally arises where family, or other persons in a position of trust, are putting pressure on a person.
He can reserve a ‘right of residence’ for himself in the home, but the important point would be that the property would not be his, it would be his sons. It is also important to note that if your brother intends getting a mortgage, this further compromises your father’s position. There have been situations whereby a well-meaning child has had a property occupied by themselves and their parent repossessed by a bank, rendering their parent essentially homeless.
Divesting himself of the property at this stage may also negatively impact his ability to avail of the Nursing Home Support Scheme in the future.
If you feel that any amount of undue pressure is being brought to bear on your father, then the matter should be reported to your father’s solicitor. If you feel that your father does not have capacity, you can make an application under the Assisted Decision-Making system. A caution might be placed on the property to ensure that the transfer cannot go through.
I appreciate that you live abroad, but most solicitors are able to take instruction via telephone or zoom.
This issue needs to be carefully canvassed with your father, and perhaps with your brother.
