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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, My father has written a Will in which he states that

Resolved Question:

Hi,

My father has written a Will in which he states that everything is to be left to me - however, my sister has it and will not give it back to me (this is the background in short).
I'm also Lasting Power of Attorney,

This is where I need help. My Father has dementia and recently had to go in to hospital to have an operation (nothing related to dementia), he was in for 5 days (I stayed with him), during these 5 days he took be to his bank and transferred a large sum of money into my account.

Following the operation, his mental state rapidly decreased, he couldn't remember signing over the money to me and reported me to the police for theft. This was cleared up, however, now he is about to go into a care home and I am being told that the money I have - which was always meant to be mine has to pay for his care. The same care he'd get had I not have that money in my account.

Where do I stand on this matter, can I contest this?

Thanks,
Camille
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Can you confirm which month your father transferred monies into your account please - was it this year?

Joshua :

At the time he made the transfer did he know of the liklihood he may need to enter into care at that time?

Customer:

That's the thing, the money was transferred literally whilst he was still residing in hospital - prior to going into an assessment unit. He knew what he was doing at the time, but his mind is now declining rapidly.

Customer:

He knew that a home was a likely option.

Joshua :

Thanks. Can you kindly tell me when the gift to you was actually made? Was it this year or several years ago?

Joshua :

Would you like to continue?

Customer:

You haven't answered my question - do I have a leg to stand on? Do I need to use the money to pay for his care?

Joshua :

In order to assist I really need to know the date your father made the transfer to you as above. Are you able to help me with this point?

Customer:

It was around November 7th, 2013 - just over 2 weeks ago.

Joshua :

Many thanks. In respect of the money that he transferred to you regrettably the local authority is likely to have wide powers to claim this. All it needs to show is that your father was likely to have known that he was going to have to enter into care at the time he made the transfer and they can deem the gift "deprivation" and reverse it.

Joshua :

The purpose of this law is to prevent people transferring their assets before they have to go into care in order to avoid care fees.

Joshua :

Proximity of the transfer and having to go into care is a principle issue when determining whether deprivation has occured and such a small amount of time between the two events would I regret give the council no difficulty in showing a causal link between the two. You would have to show persuasive evidence that there was no way your father could have known that he may have to enter into care at the time of the transfer and furthermore the reason for the transfer in order to overcome this.

Joshua :

However this does not necessarily mean all is lost...

Customer:

How so? I feel like I'm between a rock and a hard place.

Joshua :

Although it is unlikley the law can assist to protect these funds due to the above there are potential financial solutions to simply allowing your fathers assets to be taken until they are exhausted...

Joshua :

You could consider looking at an immediate care needs plan. This operates along the lines of a specialised annuity whereby in return for a one off premium your father is guaranteed payments to fund or top up his care for the rest of his life. It can give reassurance as to the total cost of care whilst giving both choice and sometime a better standard of care and can be cheaper than watching reserves be eaten away at by the local authority. An IFA operating under www.symponia.co.uk can give more information on this.

Joshua :

Whether or not this is attractive will depend upon the size of your fathers estate and other factors but such financial solutions can be worth considering and are rarely mentioned by councils.

Joshua :

Is there anything above I can clarify for you?

Customer:

The thing is, he transferred £40,000, he has £50,000 in total - are they entitled to take it all, or is it anything after £24,000?

Customer:

With this sum of money, is it likely that the above doesn't really apply?

Joshua :

notwithstanding the above, they are entitled to claim your father's monies and any other assets held in his name until they reach a balance od £23,350. In other words the local authority has a claim against everything above the sum. Once his capital reduces below £23,350, the local authority will begin contributing towards his care until his above savings reach £14,250 upon which full funding will become available. They would also have a claim against any money he receives as income (e.g. pension) except for some minor amounts that he is allowed to keep for his own spending requirements.

Joshua :

Is there anything above I can clarify or assist you with any further?

Customer:

Sorry if I appear stupid, does this mean then that if my dad has £50,000, they will leave the remaining £22,000 which is when the council step in?

Customer:

Please can you speak in layman terms as I'm not savvy with this kind of speak. This is all very new to me, confusing and stressful. Sorry.

Customer:

Not that I'm stressed by you, rather my situation.

Joshua :

No that's fine. Its not quite that simple unfortunately. The local authority would have a claim against any money in any accounts your father maintains in his name and the money he transferred to you and and any other assets. If these combined sums total £23,350 or more, the local authority has a claim against everything above that sum. Once your fathers capital reduces below £23,350, the local authority will begin contributing towards his care until his savings reach £14,250. After the savings reduce below £23,500 they will expect your father to contribute 1 pound for every £250 of capital he has between £14,250 and £23,350. They would also have a claim against any money he receives as income except for some minor amounts that he is allowed to keep for her own spending requirements. After his savings reach £14,250, the council will fully fund his care without contribution from him at all.

Customer:

How can I go about contesting this? I understand that you say the proximity of time is makes things questionable, however, prior to him going into hospital he did talk of want me to have a deposit for a house - the money in my account is registered as being a deposit for a house as I was contemplating possibly buying a house and having him live with me. But he declined rapidly, such is the case of vascular dementia - in the space of 2 weeks, his health nose dived.

Joshua :

I fear contesting the transfer of monies given such a short space of time between his going into care is going to be very difficult. Unless you can categorically prove that at the time your father made the transfer to you might he had no knowledge that he was likely to have to enter into care in the near future, the council would have little difficulty in claiming these funds towards care fees and could ultimately issue proceedings against you to recover the monies. would you be able to categorically show that your father would have had no such knowledge nor reasonable belief at the time he made the transfer that he may have to enter into care?

Customer:

At the time that he put the money into my account, we were talking about living with me and about the possibility of social housing, somewhere where he had his independence - now his mental state has drastically deteriorated and he is looking at full care. Would I still be in the same position were he still self-sufficient enough to go into social housing?

Joshua :

if you could demonstrate that he had no reasonable belief to consider that he would need to potentially enter into care at the time he made the transfer, there may be a defence available to you to resist the reclaiming of those monies but given the proximity of the transfer to the point at which he is needing to enter into care, you would need persuasive and substantive evidence in this respect. if your father were able to be cared for by other means other than a care home, this could affect of course the amount of the council could potentially reclaim. if there are other care options available to your father besides a care home, you may wish to consider discussing such options with the council and funding options the council has available - these can vary from one local authority to another

Joshua :

is there anything further I can assist you with?

Customer:

Thank you.

Customer:

You were helpful.

Customer:

Camille

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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