Care Fees Deferral

Briskly

Sorry about the delay - difficult times.. It seems the Father's will left the house and to the daughters without any interest to the wife. Unfortunately they don't have power of attorney for the Mum. I just found details of a case online from 2015 - Barkerevenslaw, Walford vs Worcestershire Council that which doesn't seem to bode well with regard to getting the council to allow a disregard for the daughter. Tried to post a link to this but not allowed to.

elsien

Link for the Walford case.
https://www.hyphenlaw.co.uk/site/blog/deputyship-blog/walford-v-wcc
If mum does have half the house and/or other assets -savings, pension etc then if there's no power of attorney and mum hasn't got capacity to make one (a dementia diagnosis does not automatically mean she lacks capacity) they need to apply for financial deputyship.  They would be advised to do this sooner rather than later because it can take so long. No solicitor needed, it's all on the gov.uk website.

https://www.gov.uk/become-deputy/who-can-apply-deputy
In the meantime if mum needs to access state pension, attendance allowance etc,  one of them can apply to DWP to be an appointee for benefits purposes. That will give her spending money while the rest is sorted out. 

Briskly

Thanks again for your help Elsien - it is very much appreciated,

xylophone

The point here is that the daughters ( one of whom is the OP's friend) have been left a beneficial interest (Father's 50%) in the property. 

 As far as I can gather, Mrs Walford  was the sole proprietor (owner) of Sunnydene, both beneficially and legally. Her daughter's claim rested on her being over 60 and an occupier - the court ruled against her on the basis that she was not a full time occupier.

 In the case of the OP's friend, either or both of  the daughters  could choose to live in the property  by right as they have a 50% beneficial interest.

 The OP'S friend's Mother has a beneficial interest in the other half of the property (  and is the legal owner of the whole)  and the LA will take  her beneficial interest into account in the means test.

However, the LA must value it on the basis of a "willing buyer/willing seller" - if the daughter chooses (as is her right)  to live in the property, what would a buyer be willing to pay in those circumstances?

That aside, even if valued at half the sale value with vacant possession, if the daughter chose to live there, it seems to me that the LA might be required to allow the deferred payment arrangement to continue with the charge against the property.

If neither daughter chose to take up residence in the property, it seems to me that the LA would expect the property to be sold and half the proceeds to be applied to Mother's fees.

Briskly

Thanks again Xylophone - very helpful points there. I think they will provide comfort to her in this very difficult situation.
PS just wondered about your second from last paragraph - if valued at half sale value with vacant possession and the LA deferred payment, could this be extended after the Mum passed away? My friend is desperate to be able to stay in the family home for the rest of her days. 

xylophone

Let us know how it goes when matters become clearer.

Briskly

xylophone said:

The point here is that the daughters ( one of whom is the OP's friend) have been left a beneficial interest (Father's 50%) in the property. 

 As far as I can gather, Mrs Walford  was the sole proprietor (owner) of Sunnydene, both beneficially and legally. Her daughter's claim rested on her being over 60 and an occupier - the court ruled against her on the basis that she was not a full time occupier.

 In the case of the OP's friend, either or both of  the daughters  could choose to live in the property  by right as they have a 50% beneficial interest.

 The OP'S friend's Mother has a beneficial interest in the other half of the property (  and is the legal owner of the whole)  and the LA will take  her beneficial interest into account in the means test.

However, the LA must value it on the basis of a "willing buyer/willing seller" - if the daughter chooses (as is her right)  to live in the property, what would a buyer be willing to pay in those circumstances?

That aside, even if valued at half the sale value with vacant possession, if the daughter chose to live there, it seems to me that the LA might be required to allow the deferred payment arrangement to continue with the charge against the property.

If neither daughter chose to take up residence in the property, it seems to me that the LA would expect the property to be sold and half the proceeds to be applied to Mother's fees.

Some more bad news - it seems now that my friend's sister wants to cash in her share of the house. My friend has no savings and would be unable to buy her sister out. Does this mean a request for a discretionary disregard is pointless? Could the sister really force her to move out?  I'm not thinking straight at the moment - any help appreciated!

elsien

Briskly said:

xylophone said:

The point here is that the daughters ( one of whom is the OP's friend) have been left a beneficial interest (Father's 50%) in the property. 

 As far as I can gather, Mrs Walford  was the sole proprietor (owner) of Sunnydene, both beneficially and legally. Her daughter's claim rested on her being over 60 and an occupier - the court ruled against her on the basis that she was not a full time occupier.

 In the case of the OP's friend, either or both of  the daughters  could choose to live in the property  by right as they have a 50% beneficial interest.

 The OP'S friend's Mother has a beneficial interest in the other half of the property (  and is the legal owner of the whole)  and the LA will take  her beneficial interest into account in the means test.

However, the LA must value it on the basis of a "willing buyer/willing seller" - if the daughter chooses (as is her right)  to live in the property, what would a buyer be willing to pay in those circumstances?

That aside, even if valued at half the sale value with vacant possession, if the daughter chose to live there, it seems to me that the LA might be required to allow the deferred payment arrangement to continue with the charge against the property.

If neither daughter chose to take up residence in the property, it seems to me that the LA would expect the property to be sold and half the proceeds to be applied to Mother's fees.

Some more bad news - it seems now that my friend's sister wants to cash in her share of the house. My friend has no savings and would be unable to buy her sister out. Does this mean a request for a discretionary disregard is pointless? Could the sister really force her to move out?  I'm not thinking straight at the moment - any help appreciated!

To be honest, that's not an unreasonable request by the sister in the long run. She may need the money for any number of reasons - if she's on means tested benefits, the house will count as an asset and her money reduced accordingly; she may be in debt; she may wish to buy a new car, upgrade her house, splash it all on a holiday.
And she is entitled to it, whatever her reasons.
Your friend may wish to spend the rest of her days there, but that's not neccessarily fair on her sister who won't be benefitting from her share, is probably going to be partly liable for maintenance etc,  while your friend gets a free roof over her head. And she may have to then move anyway if mum's bit can't be disregarded. 
Could your friend get a mortgage to buy her sister out - this may only be worthwhile if mum's share is disregarded so there could potentially still be cause to follow that up. 
Things are very raw at the moment and people grieve in different ways but unless they can at some point agree a way forwards then the sister is entitled to her share. Enforcing it may involve a long and costly court battle from which there will be no winners and it would be a shame to fall out over it.
I suggest that as no-one is able to do much at the moment anyway with mum's share being in limbo, everyone takes time to really think about what they want and how this can be achieved. Would your friend be able to make use of her share to buy somewhere else, for example? Is she clinging on because she doesn't know if she's coming or going and is hanging on to what is familiar while the world round her goes mad.
They need time to grieve before any decisions are made and before anyone says anything they may later regret. 

Briskly

Thanks so much Elsien for these words of wisdom. The sister is about to embark on a divorce and is worried because she is not on the deeds of the marital home and would need the money to live somewhere else. I would have thought she would still be entitled to a half share and could not be forced out? As you say, they all need time to grieve before any decisions.

xylophone

No doubt your friend has by now advised the LA of her father's death and of the provisions of his will.
She is living in the property (as is her right as part beneficial owner).

Under these circumstances, the LA may either disregard the value of the property in the means test or (more likely), agree to defer the fees against a charge on the property until mother's death.

However, it appears that your friend's sister wishes to realise her inheritance - while  the sister cannot simply require her to move out,  the sister would have the option to go to court to force a sale.

I am sure that your friend would not wish to make her sister go down this path - the logical step is therefore to sell the property?

While the property remains unsold, the situation with the LA remains the same.

Now comes the question of selling the property.

You mention that Mother has dementia - is she incapable of making the decision to sell the property?

If  not, does your friend (or anybody else) have PoA for Mother? If not, a deputyship order  will be needed - https://www.gov.uk/become-deputy/apply-deputy

It could well take many months to get it - your friend would presumably remain in the property.
She would need to obtain a valuation of the property from a RICS qualified surveyor.

Once the property was sold, your friend would deposit half the proceeds of sale in her mother's account and arrange for her sister's share to be paid out.

Mother's money would then be used as appropriate to pay for her care until such time as her assets were reduced to the level that the LA would be required to fully fund her.

Of course, if your friend is in a position to  get a mortgage for the value of 75% of the property, she could buy the property and pay Mother and sister as above?