Hello, I do hope that I am on the right forum, if not please move me.

We have many questions to ask, but for the time being, this one is the most important.

I am one of two married sisters and are both very concerned over financing healthcare for our mum.

The backround to it is that their home about 22 years ago, which had always been in mum's name, but dad provided the original finance to buy it, half the value was transferred into a family trust for their grandchildren (our kids). This was done by the trust paying off the outstanding mortgage, so obviously it exchanged the cash for the half interest in the property.

Fast forward, their home is effectively owned as to 50% (£325,000) by mum and 50% (£325,000) by the trust.

Mum is having to go into residential care and we have had to undergo a means tested review. The council want to take mum's 50% as her available capital + 50% of the monies held in various bank in mum and dad's joint names less £23500.

Where does our dad feature in all of this? His name is and never has been on the deeds nor on the old mortgage. I do know that when they moved in 30 years ago, dad had to sign a disclaimer that he had no call on the property and that he was resident with mum on a 'temporary residential licence' only.

Dad (76) still lives at home but it is looking very likely that to fund mum's (74) care he is going to have to move out and the house be sold.

We both thought that as long as one of the spouses (mum or dad) was still resident, then the value of their home should be ignored.

Our fear is that dad will be left homeless with no money other than his half in the deposit accounts. On the sale 50% of the house proceeds will revert back to the trust and the other half will be taken by the council excepting the first £23500.

Surely this shouldn't be happening?

Normally I would expect the council to put a charge on the property so that bills were paid when the property is sold, whenever that might be. I suspect that they could only put a restriction on the property and not force a sale as there is a joint owner, so your father should be ok.

I might be entirely wrong so would suggest you get professional legal advice.

How long ago was the 50% put into trust? If under 7 years it could be a problem.

Normally I would expect the council to put a charge on the property so that bills were paid when the property is sold, whenever that might be. I suspect that they could only put a restriction on the property and not force a sale as there is a joint owner, so your father should be ok.

 

I might be entirely wrong so would suggest you get professional legal advice.

 

How long ago was the 50% put into trust? If under 7 years it could be a problem.

Thanks and yes that is what we would have expected, but limited to only 25% of the value of their home. However as dad has never featured on the deeds of the property, despite him paying for it (the large deposit and the monthly mortgage payments out of his income - mum has never worked) we are worried that he would get nothing out of the property when it is sold. It seems that the council are intent on taking 50% of it less of course the first £23500. The joint owner is the trust and the capital/income of it belongs to the grandchildren - effectively the grandchildren through the trust all have equal ownership of the other 50%. They are arguing that he is simply a tenant without a formal tenancy agreement, merely a licence to occupy (living there free of charge) and can be evicted at any time. As such there is no spouse in occupation with a right to live there, and the joint owner instead being a trust which doesn't have the same legal protection, the council have no alternative but to treat the property as being part owned but solely occupied by mum. Most of that jargon comes from the letters from the council's solicitors.

As I have said, the trust was set up 22 years ago with quite a large inheritance from our grandfather's estate.

Mum is having to go into residential care and we have had to undergo a means tested review. The council want to take mum's 50% as her available capital + 50% of the monies held in various bank in mum and dad's joint names less £23500.

Has a clinical assessment of your Mum's needs been carried out yet. If this has not been done, the council could find itself in trouble especially if the level of care falls within the remit of NHS funded Continuing Health Care.

If you take a look at this Age UK fact sheet: http://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS38_Treatment_of_property_in_the_means-test_for_permanent_care_home_provision_fcs.pdf

The value of your former home will be disregarded (ignored) if it is occupied by:

 

• your partner (husband, wife, civil partner or someone you live with as though you are married or civil partners); or
  
• a relative who is 60 years old or over, or a younger relative who is ‘incapacitated’; or
  
• a former partner who is divorced or estranged from you but who is a lone parent; or
  
• a child under 18 years who you are liable to maintain.
  

One last point: The LA has the discretionary power to disregard the value of the property and should give consideration to any request to do so. Make the request now if it hasn't already been done. Then demand that a full explanation is given if the request is refused.

From an outsiders perspective it seems odd that your father is not in the deeds. What is the reason for this?

I believe your father could be in trouble if he deliberately emptied joint accounts to avoid paying for care. I really think it's worth getting legal advice.

Has a clinical assessment of your Mum's needs been carried out yet. If this has not been done, the council could find itself in trouble especially if the level of care falls within the remit of NHS funded Continuing Health Care.

 

I would suggest that because your father is still occupying the property, any notional value should be disregarded. It sounds like the LA is on a money-grab exercise and is trying to get their hands on as much as possible. Contact Age UK and see what they have to say, then seek qualified legal advice.

 

One last point: The LA has the discretionary power to disregard the value of the property and should give consideration to any request to do so. Make the request now if it hasn't already been done. Then demand that a full explanation is given if the request is refused.

Hello, thanks and yes an assessment of her needs has been undertaken. It has been decided that she only requires (mainly) social care - Dementia. As such mum has to pay/contribute towards the fees.

I have argued with the council on this particular point after initially seeking advice from AgeUK. It seems that as the council have in their possession a copy of the 'licence to occupy' (given to them by dad) when they called round to see him for them to decide if the council should obtain Power of Attorney Court of Protection or something like that over mum's financial affairs, they do not regard that as being 'in possession of' the property, but merely an unsecured tenant. Dad refused to allow it, but I now hear that the council are going ahead anyhow with an application hence why both my sister and I are panicking a bit.

I too think that a trip to the solicitor is the next stage as we don't want dad to be evicted from his home and certainly don't want him to lose an equal amount of equity that mum has in their house.

From an outsiders perspective it seems odd that your father is not in the deeds. What is the reason for this?

 

I believe your father could be in trouble if he deliberately emptied joint accounts to avoid paying for care. I really think it's worth getting legal advice.

Hello and thanks. TBH, I don't think that it is odd at all. There are many married couples and indeed unmarried ones that live in the family home that is registered to just one party. In fact my home is registered only to my husband as he obtained the mortgage based entirely on his income. I work a few hours a week, but spend the majority of my time looking after our children. They weren't interested or needed my income to qualify for the mortgage.

I have read on another part of this website of the family home being registered to a wife and her mother only - he (the husband) doesn't feature on the deeds. Her mother has now died and it seems that the property will revert to his wife only.

We will be seeking advice from a solicitor this next week to see what can be done to secure our dad.

OK you basically have a tenants in common. Most LAs would normally disregard the house completely as its virtually impossible to sell half a property.

What my parents did was change to tenants in common, each leaving their half to my sibling and I with the surviving spouse having a living tenancy. Now if the surving spouse has to go in a nursing home. only 50% of the home is used to assess fees and this is usually assessed as nil as you cant sell half a house. Many people don't protect their property thia way because a spouse living in the home is protected anyway. I haven't seen any rule where it says if the other spouse doesn't own any part of the home they can evict them. I think they are trying to pull a quick one.

Also why does she need to go into a home, if its for medical care then their shouldn't be an assessment at all.

[...] they called round to see him for them to decide if the council should obtain Power of Attorney Court of Protection [...] over mum's financial affairs

Google "Court of Protection" and have a read of some of the horror stories. You need to fight any attempt with as much vigour as you can muster. Do not let the LA gain control over the financial affairs of any family member.

I agree. I know of a case where a LA tried to to obtain a POA when the daughter already had one and the LA knew this.

Google "Court of Protection" and have a read of some of the horror stories. You need to fight any attempt with as much vigour as you can muster. Do not let the LA gain control over the financial affairs of any family member.

I think you should contact the Alzheimer's Society for advice as just because someone is suffering from dementia doesn't mean they need social care (with fees) rather than continuing care (no fees). Many members of the AS have successfully challenged assessments.

Hello, thanks and yes an assessment of her needs has been undertaken. It has been decided that she only requires (mainly) social care - Dementia. As such mum has to pay/contribute towards the fees.

I have argued with the council on this particular point after initially seeking advice from AgeUK. It seems that as the council have in their possession a copy of the 'licence to occupy' (given to them by dad) when they called round to see him for them to decide if the council should obtain Power of Attorney Court of Protection or something like that over mum's financial affairs, they do not regard that as being 'in possession of' the property, but merely an unsecured tenant. Dad refused to allow it, but I now hear that the council are going ahead anyhow with an application hence why both my sister and I are panicking a bit.

 

 

I too think that a trip to the solicitor is the next stage as we don't want dad to be evicted from his home and certainly don't want him to lose an equal amount of equity that mum has in their house.

OK you basically have a tenants in common. Most LAs would normally disregard the house completely as its virtually impossible to sell half a property.

 

What my parents did was change to tenants in common, each leaving their half to my sibling and I with the surviving spouse having a living tenancy. Now if the surving spouse has to go in a nursing home. only 50% of the home is used to assess fees and this is usually assessed as nil as you cant sell half a house. Many people don't protect their property thia way because a spouse living in the home is protected anyway. I haven't seen any rule where it says if the other spouse doesn't own any part of the home they can evict them. I think they are trying to pull a quick one.

 

Also why does she need to go into a home, if its for medical care then their shouldn't be an assessment at all.

Hello and thanks. No I think you have misunderstood what I have said. Mum has always owned the house with only her name on the deeds. When mum bought the current home, it was a condition of the mortgage that she obtained that her husband (dad) given that he was a 'sitting tenant/squatter' with no financial interest in the property (not being recorded on the deeds) had to sign a legal document confirming that he had no call upon the property and that he would leave when requested to do so if and when mum decided to sell. Without that form, the bank would not have provided the funds to just mum alone, they would have required dad to join her on the mortgage and hence the deeds.

I think you should contact the Alzheimer's Society for advice as just because someone is suffering from dementia doesn't mean they need social care (with fees) rather than continuing care (no fees). Many members of the AS have successfully challenged assessments.

Hello and thanks. We had both heard of this before. But when this was raised by me with the Social Services and hospital, they insisted that mum did not require any considerable nursing/clinical interventions. They made a point of telling me that mum simply could not remain at home as she was too much for dad to cope with which he agreed with. It was making him ill. She simply needed a place of safety where she could be looked after 24/7. They have said that they will review mum's situation regularly and if it does become a 'nursing' matter for the majority of the time, then the decision can be revised.

Google "Court of Protection" and have a read of some of the horror stories. You need to fight any attempt with as much vigour as you can muster. Do not let the LA gain control over the financial affairs of any family member.

Hello and thanks. My question is how? They have made it clear that this is what they are applying for and don't require dad's or our approval. From a practical point of view, I would be no good in handing all of mum's financial affairs, I find it hard enough to balance our own family budget. My sister is the same, she has far to much going on in her life to get involved as with three children and both working full time, there isn't that much free time available. Dad would be the best I think, but I have to admit he has had the fight knocked out of him with losing mum never mind the fact that he has been told that he may be evicted. He's an old man that isn't in the best of health and we do worry about what the future holds for him. He is always asking why? He sees that he has done the best he could for mum and us, yet now he feels that he is losing everything that he has worked and fought for.

Please read my post at #6. The assessment should be a nil because she only owns half the house as a tenant in common and who wants to buy half a house. I can't see them forcing a sale either. You really need to see a solicitor who is an expert in this area.

Of course they will say this, there first consideration always seems to be "does he/she own a house".

Don't take their word as gospel.

Hello and thanks. We had both heard of this before. But when this was raised by me with the Social Services and hospital, they insisted that mum did not require any considerable nursing/clinical interventions. They made a point of telling me that mum simply could not remain at home as she was too much for dad to cope with which he agreed with. It was making him ill. She simply needed a place of safety where she could be looked after 24/7. They have said that they will review mum's situation regularly and if it does become a 'nursing' matter for the majority of the time, then the decision can be revised.

I forgot to say, my parents were advised by a solicitor that following the death of one of them, if the survivor needs to go in a home the house should be disregarded ad I've explained above, However apoarently many LA try it on and get their way, evan going as far as trying to force a sale to get their mitts on 50% of the property (which theyre not entitled to). I know I keep going on about this but its something that really annoys me.