Care Fees Deferral

wizzywilc

1) Is the existing deferred payment arrangement correct? As Xylophone says the value of the home is disregarded in the care assessment if a spouse continues to live there. It is not unknown for Local Authorities to get things wrong, and the deferred payment arrangements were not well understood when they were first introduced. (I helped arrange one for my husband's mother in 2015, and we had to point the council to the Local Government Association's guidance on how to set them up!)
2) The mother would also be entitled to have a deferred payment arrangement with the LA. Although this raises the tricky question of capacity. If someone else has Power of Attorney for the mother would it be in the mother's best interests to make a deferred payment arrangement?
3) The LA does also have discretion to disregard the value of of a home, for example where someone has given up their own home to care for someone in their home. OP's friend should also make sure that the LA is aware of the extent to which she provided care for her father.
$) As Xylophone says, the LA is unlikely to act quickly. Current government guidance is that people should delay moving while coronavirus measures are in place. 

elsien

Is there a  power of attorney in place for for mum?
If not, and mum lacks capacity around finances due to her dementia then a deputyship will need to be applied for for the home to be sold anyway (if that is indeed required following review of the deferred payments arrangement/financial assessments.) These were taking months even before covid which would give your friend plenty of breathing space to sort out what to do next.
Even so, no-one is going to insist that the house is cleared and sold imminently - they don't have the power. Your friend I think is worrying unduly. 

Briskly

wizzywilc said:

1) Is the existing deferred payment arrangement correct? As Xylophone says the value of the home is disregarded in the care assessment if a spouse continues to live there. It is not unknown for Local Authorities to get things wrong, and the deferred payment arrangements were not well understood when they were first introduced. (I helped arrange one for my husband's mother in 2015, and we had to point the council to the Local Government Association's guidance on how to set them up!)
2) The mother would also be entitled to have a deferred payment arrangement with the LA. Although this raises the tricky question of capacity. If someone else has Power of Attorney for the mother would it be in the mother's best interests to make a deferred payment arrangement?
3) The LA does also have discretion to disregard the value of of a home, for example where someone has given up their own home to care for someone in their home. OP's friend should also make sure that the LA is aware of the extent to which she provided care for her father.
$) As Xylophone says, the LA is unlikely to act quickly. Current government guidance is that people should delay moving while coronavirus measures are in place. 

Thanks a lot Wizzywilc. I need to check point 1 out with the LA - reading through the Age UK info that Xylophone kindly linked mentioned the disregard with the spouse living there and when I called them they confirmed that no money should have been taken so far from the house value. On point 2, need to check out whether she has Power of Attorney   - I think she does. On point 3 I need to draw up a list of items which might help with the discretionary disregard - chief of which is her spending so much time at the family home caring for her Father. I wonder of cash-strapped councils are going to do everything to avoid this. Does anyone have an experience I wonder? On point 4 - thank goodness for this at least!

Briskly

elsien said:

Is there a  power of attorney in place for for mum?
If not, and mum lacks capacity around finances due to her dementia then a deputyship will need to be applied for for the home to be sold anyway (if that is indeed required following review of the deferred payments arrangement/financial assessments.) These were taking months even before covid which would give your friend plenty of breathing space to sort out what to do next.
Even so, no-one is going to insist that the house is cleared and sold imminently - they don't have the power. Your friend I think is worrying unduly. 

Thanks Elsien. I think she does have power of attorney but will have to check. I will pass on your comments about all the delays and breathing space. I have just found out that there is a tenants in common arrangement  on the house, which should help? Also that the Will leaves the Father's share of the house to the daughter and her sister.

xylophone

I have just found out that there is a tenants in common arrangement  on the house, 

But does the will leave father's share of the property to mother?

Or does it leave her an interest in possession only?

Briskly

xylophone said:

I have just found out that there is a tenants in common arrangement  on the house, 

But does the will leave father's share of the property to mother?

Or does it leave her an interest in possession only?

Pretty sure the will leaves the father's share of the property to the daughters. Not sure what you mean by interest in possession only? 

elsien

If dad has left his share to daughter and sister, and the initial deferred payment was a mistake, then it's a clean slate moving forwards.

I would suggest the first thing she does is check whether her living arrangements and the care for her father counts towards the disregard however she did have her own place, albeit small, so that may depend on the discretionary element rather than an automatic disregard although that's just an opinion as I'm not an expert. 
Moving forwards, and if the decision in the longer term is that mum's share of the house does need to be included in mum's financial assessment, then your friend and her sister need to decide what they want to do. They need to consider if either will want their share in cash and also whether they need to buy each other and mum out and can afford to so so at a fair market rate. 
If your friend does have power of attorney then she has an obligation to act in mum's best interests, not her own. However this is all much further down the line; no-one has a clue at the moment what a fair rate may look like in a few months time.
Your friend should give herself time to grieve and then look at how things stand when she is and her sister are ready and able to do so. And to consider getting legal advice to challenge the council if it should come to that at any point. Which it may not. 

Briskly

elsien said:

If dad has left his share to daughter and sister, and the initial deferred payment was a mistake, then it's a clean slate moving forwards.

I would suggest the first thing she does is check whether her living arrangements and the care for her father counts towards the disregard however she did have her own place, albeit small, so that may depend on the discretionary element rather than an automatic disregard although that's just an opinion as I'm not an expert. 
Moving forwards, and if the decision in the longer term is that mum's share of the house does need to be included in mum's financial assessment, then your friend and her sister need to decide what they want to do. They need to consider if either will want their share in cash and also whether they need to buy each other and mum out and can afford to so so at a fair market rate. 
If your friend does have power of attorney then she has an obligation to act in mum's best interests, not her own. However this is all much further down the line; no-one has a clue at the moment what a fair rate may look like in a few months time.
Your friend should give herself time to grieve and then look at how things stand when she is and her sister are ready and able to do so. And to consider getting legal advice to challenge the council if it should come to that at any point. Which it may not. 

Thanks Elsien for that brilliant summary. I'm so grateful to all you guys for your help.

xylophone

Pretty sure the will leaves the father's share of the property to the daughters. Not sure what you mean by interest in possession only? 

You initially indicated (in your first post) that father had left his share of the property to his wife. 

If he had done just that, without qualification, then the property fell into the sole ownership of his wife and its value would be counted in any assessment for care home fees.

 Alternatively, he might have chosen to leave his share of the property to  a person/persons other than his spouse but with a life interest to his wife so that ( at its simplest) she could continue to live in the property until she died/needed care etc.

Again, he might have simply chosen to leave his share to his daughters without any interest in possession to his wife.

What exactly does father's will say?

Briskly

xylophone said:

Pretty sure the will leaves the father's share of the property to the daughters. Not sure what you mean by interest in possession only? 

You initially indicated (in your first post) that father had left his share of the property to his wife. 

If he had done just that, without qualification, then the property fell into the sole ownership of his wife and its value would be counted in any assessment for care home fees.

 Alternatively, he might have chosen to leave his share of the property to  a person/persons other than his spouse but with a life interest to his wife so that ( at its simplest) she could continue to live in the property until she died/needed care etc.

Again, he might have simply chosen to leave his share to his daughters without any interest in possession to his wife.

What exactly does father's will say?

Thanks Xylophone, I will have to check. I just found out today about the will leaving his share to the daughters. It appears it was made before the Mum went into care.