Q. I am an 85-year-old widowed man. Five years ago, my son who lives in the family home with me and his girlfriend, approached me to transfer my family home to them on the basis that they wanted to build a self-contained extension for me, which I may need in due course.
I went to my solicitor who advised against it and would not complete the transaction for me. After that, my son and his girlfriend put so much pressure on me that I went to another solicitor who ultimately completed the transfer.
My son approached me last week saying he thinks I would be better off in a nursing home. I am fully able bodied, compos mentis, and in no need of a nursing home. I certainly don’t want to move out of my family home. I cannot go back to the original solicitor who did the transfer as I feel he did not fully warn me of the dangers of the transaction.
Can you advise what I can do in these circumstances, if anything?
Dear Reader,
This can be a very difficult issue.
The solicitor that dealt with the original transfer to your son should have ensured that you had full legal capacity and ensure (as best as they can) that you 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. Had you disclosed your previous consultation with the solicitor who carried out the transaction?
Every situation is different, depends on the health and condition of the elderly person and their other assets, etc. Given that your son was living with you, the courts might presume there was a relationship of undue influence. Whether or not the courts find undue influence depends on what you ‘got’ from the deal.
If the self-contained unit was built for you, at your son’s expense, and you retain rights in that unit or the family home as a whole is one thing, but if that unit was never built and you retain no ownership rights in the premises then that’s something the courts would consider.
You should immediately consult your solicitor. It is important to note that the decision to move to a nursing home or otherwise is one entirely for you. Given the precarious situation, you should consider whether other family members might be in a position to intervene to advocate on your behalf. You should also consider whether you need to enter into an enduring power of attorney or other decision-making arrangement should you ever not be in a position to manage your own affairs.
This issue needs to be carefully canvassed with your son through your solicitor.
