Inheriting home, Wills and father in Council Care

andyuk2005

Hi all! Hope all is well!

Bit of a complicated scenario here, almost like a riddle, will surely get your brain cells firing on this slow Monday!

So here is the scenario I hope I can get an answer for:

I live in a house with my Mum.

The house is owned outright by my Mum and Dad. My Dad is in a care home as he has late stage Dementia. The house is owned half each by each of them, I believe that's Tenants in Common.

When my Dad was put into the care home, he had a financial assessment to see what he could afford towards the care. As his spouse (my Mum) was living in the home he owns half of, the house was not counted as an assessed asset.

As it stands with their Wills, whoever passes first has their estate pass straight to the other spouse. When the second passes, the estate is then split between me and my 2 siblings equally.

If the worst were to happen and my Mum passed first, the whole house would come under ownership of my Dad and there would be no spouse or dependent relative living in that house (I wouldn't be considered dependent). It can then be considered for financial assessment by the council, and to the best of my understanding the council will recommend the house goes up for sale to pay for my Dad's ongoing care.

Such a situation would naturally leave me and my 2 siblings without a home, and dependent on the length of care could result in no estate to pass down to us.

That isn't a very good situation and it certainly wouldn't be what would be my Dad's intention if he could articulate that, bless him.

My Mum is an Attorney for my Dad via a Lasting Power of Attorney (for both the Health and Financial LPA's)

Would a suitable solution to ensure the house doesn't get brought into financial assessment for care home fees be this; have my Dad pass down his half of the house to his 3 offspring now. That way he doesn't own the house and it shall not be considered for financial assessment?

A few questions regarding that option:
- Would my Mum exercising her Attorney powers of the LPA be able to do that?
- Would it be considered that we are depriving assets from the council to pay for his care, despite it already stating those wishes in his Will?
- If my Mum owned half the house, with us 3 offspring owning the remaining half, would she be at risk of being forced out the house such as if we 3 (became evil) and wanted to sell the house? (That was one of her worries!)

BTW, we live in the Borough of Barnet if you were wondering which council!

A real interesting scenario that one, hopefully will help others out too if they have a similar situation!

Many thanks
Andy

marksoton

I don't know how old you are but you need to start looking for an alternative place to live.

And why ever would you become "evil" and even try to sell your mothers home?

csgohan4

andyuk2005 wrote: »

Hi all! Hope all is well!

Would a suitable solution to ensure the house doesn't get brought into financial assessment for care home fees be this; have my Dad pass down his half of the house to his 3 offspring now. That way he doesn't own the house and it shall not be considered for financial assessment?

Above will be seen as deprivation of assets so no.


As above start looking for another place to live and stop sponging off your parents.

BrassicWoman

would you pay a market rent for the property to go towards the care home fees?

xylophone

Your parents already owned the house as tenants in common and yet their wills left their interests in the house to each other, rather than to their children with a life interest to each other?

Did they take advice when they drew up their wills?

Your father can no longer make a new will as he has lost capacity?

Your mother can make a new will.

http://www.theguardian.com/money/2014/aug/28/tenancy-common-care-home-fee-solution

Daniel54

Under the LPA your mother can only act in your father's best interests ,which would not include giving away his assets.

Sorry about your father's situation, but this plan is a complete non starter.

TBagpuss

- Would my Mum exercising her Attorney powers of the LPA be able to do that?

No. She can only use the PoA to act in your dad's best interests. Depriving him of his assets would not benefit him, it would only benefit you and your siblings.

- Would it be considered that we are depriving assets from the council to pay for his care, despite it already stating those wishes in his Will?

Yes. He has to pay for his care first, but in any event, your mum doesn't have the power to do this on his behalf.

If my Mum owned half the house, with us 3 offspring owning the remaining half, would she be at risk of being forced out the house such as if we 3 (became evil) and wanted to sell the house? (That was one of her worries!)

See above. THe house can't be transferred to you. Your mum cannot do it under the PoA and if your Dad no longer has capacity he cannot change his will.

What your Mum can do is to change *her* will, so that her assets, including her share of the house are left to you and your siblings, rather than to your dad. If they don't already own as Tenants in Common she can sever the Joint Tenancy at the same time as she changes her will.

If she does that, then if your dad were to die first, his half of the house would pass to her under the will. The council would put a charge over the property to secure the money owed to them but they would not be able to enforce this by forcing a sale of the house until your mum died, or went into care herself. Any value left after the care fees were paid would be part of her estate wand would pass to whoever the beneficiaries under her will are.

If your mum were to die first then her half of the house would pass to you and your siblings, and the other half would still belong to your dad. However, as there would be no dependent living in the property the council would probably be able to force a sale of the house so that your dad's interest in it could be used to fund his care.

If at that point you and your siblings were able to raise a mortgage to buy your dad's share of the house from the estate at a market value then no doubt you could do so.

TBagpuss

Another option would be for you and your siblings to buy the house (or your dad's share of it) from your parents, at an open market value.
If you did that, then you would own the house, and your parents would each be assessed for care costs based on their respective shares of the capital paid.

However, your mum would be vulnerable to you or your siblings selling the house (although she could spend her share of the sale proceeds on buying a smaller property), and it might be possible for you to have a legal agreement drawn up to prevent this. BUT if you were buying with a mortgage she would have to sign an agreement that her interests would rank below that of the lender, and would probably have to temporarily move out and then back in again, so that she wasn't already occupying the property when the mortgage was made. You would need specialist advice and probably a specialist mortgage broker.

Cakeguts

Have a think about this. Your mum and dad worked hard to pay for that house. All the money that is tied up in it belongs to them. So really if your dad needs to use some of that money to pay for his care it is his money. He can spend it on whatever he wants. So can your mum. I know an inheritance would be nice but it isn't your money and there is no reason why you can't do the same as your parents did.

One of the reasons why it is a bad idea to live with a parent past the time when you should be independent is that you are likely to lose your home if a parent goes into a care home or if they move to a retirement home with a lower age limit on it.

Start from the basis that all of the money that is in the house belongs to your parents and is for them to spend as they want to and if there is anything left over you will get that.

marksoton

Cakeguts wrote: »

Have a think about this. Your mum and dad worked hard to pay for that house. All the money that is tied up in it belongs to them. So really if your dad needs to use some of that money to pay for his care it is his money. He can spend it on whatever he wants. So can your mum. I know an inheritance would be nice but it isn't your money and there is no reason why you can't do the same as your parents did.

One of the reasons why it is a bad idea to live with a parent past the time when you should be independent is that you are likely to lose your home if a parent goes into a care home or if they move to a retirement home with a lower age limit on it.

Start from the basis that all of the money that is in the house belongs to your parents and is for them to spend as they want to and if there is anything left over you will get that.

Indeed.

Hope they leave you the world, expect nothing.

In the meantime forge your own way in life.

AdrianC

The law is that only those with very limited assets get their residential care paid for by the local authority. All those with assets pay for their own care, until their assets drop to a low level, at which point the local authority gradually takes over.

An assessment of your father's assets has already been made, and the local authority known that your father owns half of the home he shared with your mother. As such, he has significant assets - but they cannot be realised while your mother is alive and living in the house. You are not financially dependent on them, so are capable of making your own home - therefore you would be required to move from the house to allow it to be sold, even if you are a part owner, if you cannot raise the money to repay the local authority for his care any other way.

If you attempt to say "Oh, but he doesn't own half the house, and doesn't have any money at all, honest", it will be among the most comically blatant and transparent attempts to defraud the council tax payers of your area that the local authority will have ever seen.

He cannot leave anything in his will that is not in his estate at his death. If his half of the equity in the property has gone on providing his care, then he cannot leave it to you and your siblings. It's already been spent. It is not his to bequeath any more.

Should your mother predecease your father, then - currently - her half of the house will be part of his estate and - if it comes to it - that would similarly go on his care. She may consider changing her will to be a wise precaution. This would not be deprivation of your father's assets, because it is not currently his money.