A Nightmare scenario

Keep_pedalling

Does the will set up a trust for the autistic son?

Keep_pedalling

DippySkippy said:

I wouldnt inform the banks until after you've switched the DDs

The bank’s have to be informed and it is not a matter of switching the DDs but setting up new ones. The utility providers, council ect also need to be notified of the death.

StevieD54

Sea_shell………the son is the biological son of my sister from her previous marriage. She divorced long ago, remarried her current husband (in care home ), who legally adopted her son some years ago, the son now has his surname.

StevieD54

KP………

re a Trust for the son……Yes, but it only kicks in on the second spouse death.  It was set up about 5 years ago by solicitors, who I will have to now contact and ask them to explain to me in plain English what to do.  Perhaps there is some way of diverting funding from the Will to the son instead of the husband? I will also speak to the social worker tomorrow and hope she can sort a reassessment of funding for my nephew.

Flugelhorn

StevieD54 said:

KP………

re a Trust for the son……Yes, but it only kicks in on the second spouse death.  It was set up about 5 years ago by solicitors, who I will have to now contact and ask them to explain to me in plain English what to do.  Perhaps there is some way of diverting funding from the Will to the son instead of the husband? I will also speak to the social worker tomorrow and hope she can sort a reassessment of funding for my nephew.

deed of variation?

StevieD54

Flugelhorn……

Yes that’s the obvious solution, but I think beneficiaries adversely affected by changes to a Will have to agree and sign the DOV. I could reallocate assets in her Will with a DOV and ask the husband to sign it, he would be capable of signing (and I think his son would agree to any changes), but would it be a ‘legal’ thing to do given his mental capacity?

Mands

StevieD54 said:

KP………

re a Trust for the son……Yes, but it only kicks in on the second spouse death.  It was set up about 5 years ago by solicitors, who I will have to now contact and ask them to explain to me in plain English what to do.  Perhaps there is some way of diverting funding from the Will to the son instead of the husband? I will also speak to the social worker tomorrow and hope she can sort a reassessment of funding for my nephew.

I'm sorry for your loss. This is a complex situation. 

I don't think a deed of variation is possible if the husband is the sole beneficiary and has lost capacity. He can't agree, and no one else has a PoA, so the DoV isn't an option. 

The Court of Protection may be useful in time but please be aware the application typically takes 6 months or more. There are also more hoops to jump through than if applying for an LPA. The deputy has to show they are financial fit and proper, they have to take out insurance, they have to supply annual accounts. It's a significantly more onerous process, presumably to safeguard agains the fact that the person involved had no say in the matter. 

So, the Court of Protection is not going to help the short-term. 

Keep_pedalling

StevieD54 said:

KP………

re a Trust for the son……Yes, but it only kicks in on the second spouse death.  It was set up about 5 years ago by solicitors, who I will have to now contact and ask them to explain to me in plain English what to do.  Perhaps there is some way of diverting funding from the Will to the son instead of the husband? I will also speak to the social worker tomorrow and hope she can sort a reassessment of funding for my nephew.

Sounds like an immediate post death interest trust, I was hoping it might be a vulnerable persons trust. If the husband does not have the mental capacity to make a deed of variation then the terms of the will cannot be changed.

One spouse going in to residential care is definitely a point in the life of the other spouse to review their will and make changes. 

This is a complex situation and you should definitely take professional advice.

born_again

StevieD54 said:

My sister has passed away suddenly earlier this week.  I expect a death certificate to be issued next week.  Her husband is currently in a care home with dementia, he’s physically ok, just forgetful.  Her 33 year old son has autism, and has a support team who take him out to various activities each week in his Mobility scheme car. I have POA for him. She has basically run the household for years and dealt with all the bills (water, gas, council tax,Tv package etc) My nephew will continue to live in the house, he’s basically on his own now of course, and we think this can continue, as his care team are excellent and call in twice a day on days when he’s not out and about. He can do washing, hoovering etc no problem.

My main worry is this ………how on earth can all those household DD’s continue to be paid when her account is frozen, something I expect will happen next week.  The obvious option would be to transfer those DD’s to her husband’s account, but I don’t have the power to do that.  Only she had POA for him.  However, I’ve just read about something called Court of Protection for emergency situations.  Any snippets of info/advice very much appreciated x

Sorry for your loss.

Are these bills paid out of a sole account in her name or a joint account between her & husband?
Will make a difference on account being frozen.
While she has been running the household & paying bills, were they changed to her name, or still in husbands?
Once bank are informed then if it is a joint account, it would become a sole account in husbands name.

As one of 4 executors, you need to sort out who is going to deal with this. Funny feeling that you may just end up as the one.
I wish you well in sorting it out. 

Jude57

StevieD54 said:

My sister has passed away suddenly earlier this week.  I expect a death certificate to be issued next week.  Her husband is currently in a care home with dementia, he’s physically ok, just forgetful.  Her 33 year old son has autism, and has a support team who take him out to various activities each week in his Mobility scheme car. I have POA for him. She has basically run the household for years and dealt with all the bills (water, gas, council tax,Tv package etc) My nephew will continue to live in the house, he’s basically on his own now of course, and we think this can continue, as his care team are excellent and call in twice a day on days when he’s not out and about. He can do washing, hoovering etc no problem.

My main worry is this ………how on earth can all those household DD’s continue to be paid when her account is frozen, something I expect will happen next week.  The obvious option would be to transfer those DD’s to her husband’s account, but I don’t have the power to do that.  Only she had POA for him.  However, I’ve just read about something called Court of Protection for emergency situations.  Any snippets of info/advice very much appreciated x

Others are providing excellent advice on the situation but no-one else has mentioned Council Tax. From what you say about your nephew, he could well qualify for a reduction or even exemption from Council Tax on the grounds of 'severe mental impairment' detailed here:

https://www.gov.uk/council-tax/discounts-for-disabled-people

I'd also suggest that all accounts for household utilities, Council Tax, insurance etc are in future addressed to you at your address as his POA, simply to ensure that, if any problems arise, you're made aware of it immediately. I'd further recommend putting an alert marker on the property your nephew now owns/co-owns with HM Land Registry so that in the unlikely event anyone tries to raise a mortgage or register a change of ownership, you'll know about it and can, if necessary, take action. Details here:

https://www.gov.uk/guidance/property-alert