Money saved for elderly mother found in secret account but its not in the correct name so care home will take it all.

[Stay calm. Drink Tea.]

Morning everyone. As the title says. I'll do my best to bullet point it and not make a long read.

 

Father (89) has gone into a dementia nursing home. Mother (85) is now living alone in family home. Mum's mental capacity is... let's call it questionable... so she needs help.

Legally, local authority includes in his financial assessment for his care costs: 100% of his government pension, half his private pension, half of any savings and investments in joint names. Mum keeps her own pension, half his private pension and gets a tiny living allowance and half their joint savings.

If that assessment is above £23,250 he is 100%self funded. If its close to or at that figure, or his funds deplete to that figure, it's funded by the local authority less the items stated.

 

Everything we knew about apart from individual pensions was in joint names. He is being currently being assessed at the £23,250 level as the total amount he has once the savings are split is already there. 

 

Last week myself and my sister enabled our joint and several Lasting powers of Attorney for all his health and financial matters. 

Everything we found in his paperwork and accounts was as expected. EXCEPT we discovered a secret bank account and ISA that no-one knew about apart from dad that he's spent a lifetime saving money into that has just shy of £90,000 in it. We also found a letter that he's written with his final wishes in it, and it's made absolutely 100% clear in this letter that he has been saving this money for mum in the event that anything should happen to him and he wants it all to go to her. The account is in his sole name.

 

The authority will find it when they do all the means checking next weeek. As the account is not in joint names, this means he will be assessed as this money being solely his and he will be self funding, and at £1600 per week for his nursing costs in less than 12 months, all of this money will be completely gone and my mum won't get a penny of the money my dad has spent a lifetime saving for her.

Leaving aside the argument that £1600 per week care home fees is just outright blatant legal theft, I understand that he pays his share of care costs.

But taking into account that there is clear evidence that this money is supposed to be mum's money and a gift for her in the event of his passing, although it's in an account in just his name, is there any legal way that we could get at least some of this money legally transfered into mums name? Or is his lifetime legacy for our mum just going to vanish I to the outrageous black hole of overcharged care home fees?

 

Many many thanks in advance.

Stay calm. Drink tea.

Edited September 12, 2023 by Stay calm. Drink Tea.

[honeybee13]

I'm afraid I can't see a way not to declare the ISA as it's all in your father's name. 

Maybe someone else will have a different view. I think I mentioned AgeUK before, you could try them.

HB

[Stay calm. Drink Tea.]

Thank you.  

I wasn't looking for a way to hide it, aside from anything else that would put my sister and myself at risk of prosecution. 

I was just hoping that someone might know if there was a rule or legal way that at least some of this money could be transfered to mums name.

I'm currently on hold with ageUk. I started this thread listening to the hold music. 

[honeybee13]

Again, I think now the local authority are involved any movement of money could be tricky. It possibly comes under the deprivation of capital rules. 

HB

[Stay calm. Drink Tea.]

That is what I was suspected. Anything we do has to be and will be 100% above board.

I was just hoping that in certain unusual circumstances there me be some legal exceptions.

I've spoken to age UK and am now waiting to speak to a level 2 financial advisor

 

Stay calm. Drink tea.

[BankFodder]

Not really my particular area of interest – but I think you should be looking at trusts.

On the basis of what you say, your father put the money away in trust with your mother as the beneficiary. Your father is the trustee.

I don't know if anybody else can come along and give you a more detailed response – but I'm sure that that is the basis the answer and although it's very rare that we make this recommendation on this forum – I suggest that you go and find a solicitor who understands the law of trusts and can confirm – or reject what I'm saying.
If they can confirm what I am saying then they should help you secure the money for your mother.
Of course they will charge a fee for this – and you might end up finding a few thousand quid going to the solicitor – but at least you will get some of the money for your mother.

For the moment this is the best I can suggest.

Maybe somebody else will come with some additional or alternative ideas.

If no better advice is given then follow the suggestion I have made and keep us updated. It's an interesting problem

[stu007]

Hi

Could you clarify a few things for me please?

You mention you found a secret Bank Account and ISA could you clarify that these are both separate the Bank Account and ISA you found?

The Amount of £90,000 is this for both the Bank Account and ISA or just one of them?

The Letter with you Fathers Final Wishes has this been signed & dated and also Signed by a Witness?

[Stay calm. Drink Tea.]

Good morning all. 

Thank you for the replies. I've been doing a bit of digging on the history of the accounts etc. Although I called the account secret, it's secret in as much as only my father knew it existed, he never told anyone and my mum has always 100% relied on him to do the banking so no one else knew it existed.

The bank account is a Lloyd's bank account. Its in joint names with both my parents names and always has been for 60 odd years.

The ISA was originally a Lloyds bank PEP unit trust account in 1993 as far as i can tell with £6000 from the joint bank account. It was linked at that point to the joint bank account

It had money added to it regularly from the joint account until 2005 when as far as I can tell, Lloyd's bought Scottish Widows and all Lloyds unit trusts accounts were given new account numbers and rebranded to the Scottish Widows name and converted to ISA's.

Since then there has been a regular direct debit payment gone from the joint account into the ISA.

All written communication connected to the ISA (statements, information etc) are sent from Scottish Widows on SW headed paper to my parents house but are addressed solely to my father.

However online, if you log into the joint Lloyds bank account via online banking as either my mother or my father, the ISA is there listed as if it were another Lloyds account they have access to.

So on paper it appears as a SW account in just his name.

In Lloyds online banking it appears as an additional Lloyds account, accessed via logging into the joint account.

The balance of the ISA is £90,000. The joint bank account has much less and the balance is made up solely by their pensions.

For the record, my mum has never logged into online banking as she does not understand how it works. (Even if her memorable word is 'sandwich' she will always enter the 3rd letter of her memorable word as 'C' because its the third letter in the drop down list)

The letter he's written is sadly niether signed or witnessed by anyone

AgeUK have said (as bank fodder suggested) that this could possibly be considered a trust and my mum could have an interest in it through beneficial ownership, but we need to get legal financial advice as it's is straying into a specialist area.

 

Stay calm. Drink tea

Edited September 13, 2023 by Stay calm. Drink Tea.

[BankFodder]

Even more evidence that there is a trust.

Probably a constructive trust

[Stay calm. Drink Tea.]

I am making an assumption here, but also the fact that all the money that has gone into the account is technically 50% mums money as it's all come from a single joint account, has some bearing in this?

[BankFodder]

Yes definitely.

I think you definitely need to see a solicitor on the issue of to trusts

In fact I would get initial advice on this before you disclose the existence of the money to the council

[Stay calm. Drink Tea.]

Thank you all for your advice.

We now have a initial meeting with a solicitor from solicitors for the elderly who specialise in exactly this situation.

This will cost us £250 but they will look at the accounts and all the information we have and advise us from there.

I will pop back on here and update with progress

[BankFodder]

Yes, looking forward to an update. It is a very interesting question.

[Stay calm. Drink Tea.]

Quick update.
After the initial meeting with the solicitor from Solicitors for the Elderly:

We cant claim that its a constructive trust as the money is in an ISA and there are a lot of tax laws surrounding ISA's, but the short version is if we claim an ISA is a constructive trust, while that might have an element of truth through intention, if an ISA is used as a constructive trust, its also tax fraud.

However, ISAs can only be created and managed in a single name regardless of how many people put money into it, so if all the money thats gone into it has come from a joint account and there is a paper trail in the form of monthly direct debits, and money thats been drawn out has been spent on joint holidays etc, its absolutely demonstratable that half the money is mums. The solicitor says this isnt that unusual a situation in this scenario and its a pretty clear cut arguement if you need to take it to a dispute (which is also fairly common as the local authorities want to pay as little as possible while taking as much as possible, even if they are in the wrong).

DIfferent authorities apparently have different policies on this, regardless if those policies dont always follow the law...

So our next steps are go into the financial means testing process declaring this account fully, but also stating that half of the balance is mums as it is an ISA funded by a joint account.

Most local authorities will accept that, after which we can transfer half the money out of that ISA and set up a new one in mums name leaving dads half to be part of his financial assessment.

In the event that Kent is a council that sticks to the 'sorry the money is all in your fathers name' mantra, then we go back to the solicitor who will take the case as a dispute on the assessment and mum will get half the money less the solicitors fees. Which as someone said above, spending £3k or £4k thousand to claim back £45k is money well spent.

 

Also just a quick plug. Im not sure if Im allowed to add a company link/name here? But its done with the best intention, mods please remove it if Ive broken a rule.
If anyone else finds themselves in this situation,

Solicitors for the Elderly | SFE

SFE.LEGAL

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SFE is a national association of independent lawyers who specialise in legal services for older and vulnerable people. Find an SFE lawyer today.

Are an amazingly helpful people that specialise in elderly people, with 'vulnerable' defined as 'those who are not able to look after themselves and/or are mentally incapacitated'.
And also, as advice given above AgeUK have been invaluable in this whole process from day one when it became apparent that my father needed round the clock care.

And thank you all for the advice given here. Youve all helped tremendously.

Ill pop back on here and give a final update on the outcome.

Stay Calm. Drink Tea.

[BankFodder]

Thanks for this, and thank you for clarifying the situation.

One thing I don't understand is that if you get into a dispute with the council and you win, then surely they should be required to pay the costs of the dispute.
Maybe you should ask the solicitor that question