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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25426
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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my father has died and my mother is the benefator but she is

Customer Question

my father has died and my mother is the benefator but she is in the early stages of dementia. they are still married but seperated for 14 years. there is a chance she may need to go into a care home in the future. how can we protect my mothers assets from sale of house (paid for injoint names) so they don't disappear in cost of care/
Submitted: 4 years ago.
Category: Law
Expert:  Joshua replied 4 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

May I ask if your father left everything to your mother absolutely or was it left in any form of trust please?

Customer :

he left no will and there is no trust it goes to mum because they where still married

Josh-2010 :

Thank you. I see so the monies passed to your mother under the intestacy rules.

Josh-2010 :

Do you have an idea as to the amount involved?

Customer :

approximately £150.000 including house when sold

Josh-2010 :

I am sorry for the delay in reverting to you. Thank you for the above. Finally has your mother received any formal diagnosis of her dementia to date or are her doctors aware of the condition?

Customer :

she has been diagnosed wth vaseular dementia and she is in the early stages

Josh-2010 :

Thanks. I am sorry to say there is no easy way to so protect the assets. The reason being that any attempt to vary the will or give away the assets in any other way you can think of carries the possibility of challenge by the local authority on the grounds of "deprivation". This is the claim that your mother knew that she may have to enter into care in the near future because of her diagnosis and deliberately gave away assets (whether this is directly or through a variation of a will makes no difference) in order to deprive her estate of funds and assets to pay for care.

Josh-2010 :

However this does not mean there are no possible solutions...

Josh-2010 :

If you can demonstrate that at present there is no certainty whatsoever your mother will need to enter into care then the threat of claims of deprivation reduce but this could be difficult based on what you say though there are no two situations entirely alike so you may wish to speak to her doctor on this front if you need further information to determine this and consider asking for a report on her likely future care needs if the doctor feels that there is no certainty that she will need to enter into care. If this is not the case then as above any attempt to divest her of assets could be considered deprivation.

Josh-2010 :

Unfortunately where a council can potentially prove deprivation, whilst it does not stop her making gifts the beneficiaries of those gifts should be cautious about spending or investing those gifts on the basis they may face claims from the council in the future to return them. Some families consider the use of a trust until such time as the risk has passed (five years after the date of the gift) and then distributing them after that. Others will simply hold on to them individually until the risk has passed.

Josh-2010 :

Although there are limited legal solutions at this stage because of the deprivation rules there are still potential financial solutions if your mother does have to go into care and you face deprivation claims.

Josh-2010 :

I recommend considering www.symponia.co.uk. It is a network of independent financial advisers who generally offer a free appointment to discuss care funding issues. There can often be a better financial option available to you in the form of a specialised form of annuity if your mother had to enter into care in return for a one off premium. Also consider if a relative over the age of 60 lives with her the house will be disregarded for means testing.

Josh-2010 :

The above financial solutions can serve to insulate her assets against potential claims beyond the one off premium which is agreed upfront hence taking the uncertainty about assets being depleted by long term care costs.

Josh-2010 :

Is there anything above I can clarify for you?

Customer :

what is the ammont we can gift per person per year?

Josh-2010 :

There is no limit to the amount one can gift each year subject as follows: if inheritance tax is due on someones estate (allowance is £325K per person) then one can only give away £3,000 each year (double in the first year if one has not used last years allowance). If one gives more than this any amount over £3K is still treated as having not been given away for 7 years from the date of the gift for the purposes of calculating inheritance tax. If one is in receipt or likely to be in receipt of care fee help from the council any substantial gifts may be challenged by the council on the grounds of deprivation other than very small gifts such as small birthday presents and so on.

Josh-2010 :

Does the above answer all your questions or is there anything I can clarify or help with any further?

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