Small Claims Court and Power of Attorney
Discussion
My mother in law has dementia and has been resident in a care home for 3 years. My wife has financial Power of Attorney for her. The care home owner (a dodgy character - could have been the basis for Arthur Daley!) owes MIL around £6000 from a time that he was being mistakenly paid twice by the local authority and MIL (and did not disclose this!). When found out he had agreed to make monthly payments - the original amount was £15000 - but these stopped in April and no amount of correspondence has made him pay the balance since then. He has also become a disqualified director (owed HMRC £0.5m for another care home company!) and the care home is technically owned by a limited company with his wife as Director.
We are looking to go down the Small Claims Court route as it is clear cut that he owes MIL the money, but I was unsure of the process for someone with Power of Attorney - I presume my wife is able to represent my MIL's interests and process the claim? Poor MIL wouldn't be capable of understanding any of this.
Thanks
We are looking to go down the Small Claims Court route as it is clear cut that he owes MIL the money, but I was unsure of the process for someone with Power of Attorney - I presume my wife is able to represent my MIL's interests and process the claim? Poor MIL wouldn't be capable of understanding any of this.
Thanks
tty situation. Thanks, it's a good suggestion, but we pay via the Local Authority (they recommended this to avoid the owner hiking prices) so may not be open to us. I figure if they are going to go bust for £6k they are going bust anyway eventually anyway. Its a shame, the home has great staff and MIL loves it, but its run on the proverbial shoestring.
tombar said:
Sorry, poor description. The Ltd company owns the care home and owes her the money. It's just that she dealt exclusively with him as the point of contact.
Anyway the question was more about LPOA and small claims. Thanks again.
Ensure that it's the LTD Co that is the defendant, the director's finances are somewhat irrelevant - you can then attach against any assets or bank accounts once you have a judgement.Anyway the question was more about LPOA and small claims. Thanks again.
14 days Letter before Action as per the small claims protocol, then you can probably use moneyclaim online as it's <5k.
Cyberprog said:
14 days Letter before Action as per the small claims protocol, then you can probably use moneyclaim online as it's <5k.
Er...tombar said:
The care home owner (a dodgy character - could have been the basis for Arthur Daley!) owes MIL around £6000 from a time that he was being mistakenly paid twice by the local authority and MIL (and did not disclose this!).
I have no idea where you got your figure from. You are, by accident, correct though.The limit is £10k - https://www.justice.gov.uk/courts/procedure-rules/...
The above applies in E&W. Scotland, as always in legal matters, is another country.
BeeBopp said:
Yes, the PoA will allow your wife to bring a claim on behalf of your MIL.
No it won't.Someone without mental capacity is known as a `protected party', and cannot bring or defend court proceedings. A Lasting Power of Attorney does not allow the Attorney to do so on their behalf.
Before a claim can be brought there has to be a `Litigation Friend' appointed. More information here (I'm not endorsing the solicitors who published this, I know nothing about them) - https://www.emmottsnell.co.uk/blog/the-role-of-a-l...
Isn’t a statutory demand the quickest route to a conclusion here?
https://www.gov.uk/statutory-demands
https://www.gov.uk/statutory-demands
tombar said:
Just signing in to thank you all for your advice. There's a bit to research. The Statutory Demand looks particularly interesting. Any other ideas welcome!
The flaw in the small claims track is that even if you obtain judgement the other party can simply refuse to pay. Or, more often, they can claim that they didn't receive any paperwork and have the judgement set aside......and so you're back to square one.And even if you win you have to embark upon another battle to enforce judgement, appoint bailiffs etc. And the bailiffs *will* cost you and you're out of pocket if they come back to you and say "there was nothing worth taking".
Reminds me of someone I used to work with who said that a very major company (think it was someone like eBay or Paypal) had their UK "registered offices" across the square from where she worked; apparently it was a rented room containing a chair and a desk.......ergo, you sue them and win but there's nothing for the bailiffs to take.
Just checking in to update that we served the Statutory Notice today. It was sort of fun. The registered office we tried to serve first to, a firm of accountants, said they've not represented them for a year. (but still shows as current on CH website?). So we went to the home address. Caught then in. The business does seem to have the stench of decay about it.
So we now have 3 weeks to wait, before we can take to the next stage. Anyone been through it?
So we now have 3 weeks to wait, before we can take to the next stage. Anyone been through it?
tombar said:
Just checking in to update that we served the Statutory Notice today. It was sort of fun. The registered office we tried to serve first to, a firm of accountants, said they've not represented them for a year. (but still shows as current on CH website?). So we went to the home address. Caught then in. The business does seem to have the stench of decay about it.
So we now have 3 weeks to wait, before we can take to the next stage. Anyone been through it?
If you served it at the directors' home address it's not been validly served. Section 123(1)(a) of the Insolvency Act 1986 requires it to be served at the registered office.So we now have 3 weeks to wait, before we can take to the next stage. Anyone been through it?
The `next stage' after the SD's been validly served is to issue a Winding Up Petition. Assuming you're happy to do it yourself (the definition of insanity, but you are legally entitled to do so!) it'll cost you £1,880 to issue the Petition. This is not the small claims court however, and if you mess up you could be landed with a humongous legal bill.
We may not get to that stage. Checking on Companies House, there is an Active Proposal to Strike Off, I guess from either CH (Confirmation Statement 3 months overdue) or HMRC (previous companies in their governance had been wound up owing £500k to HMRC). It's a big mess, and the £5k they owe to a 90 year old who through dementia
thinks she's 14, probably pales into insignificance. But it makes my blood boil.
thinks she's 14, probably pales into insignificance. But it makes my blood boil.
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