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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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My brother had an accident which left him incapacitated – he

Customer Question

My brother had an accident which left him incapacitated – he is doubley incontinent – fed through a tube in his stomach, wheelchair bound and lives in a care home. He is entitled to Disability Living Allowance and this was paid into a specific account that my mother had set up after his accident (we could not set one up in his name as he was unable to apply. She paid for all his needs out of this (outside of the care home charges that are paid for by the government). In her will she left that bank account to my brother and left me in charge of her estate – via her will. My mother was also on allowances and in total left around £7,000 divided between a post office account and a bank account.
I applied and was granted probate and paid off what I knew she had been overpaid via her pension credit etc.
The benefits agency have now been in touch and said that we must declare how much she had in the second account (although we can prove that the money in there has only ever come from my brothers benefits) as it could be counted as part of her estate and could, possibly, be claimed back as it would take her savings over the amount allowed before her benefits would have stopped.
I am currently in the process of applying to be the “appointee” for my brother (which has been agreed with my other siblings) but am worried about what I should do. I don’t feel that they have any reason to know what is in his account (I understand that Disability Allowance is not means tested). Mother was in the process of saving for a new chair for him and saving for him to go on a holiday (this would mean him taking at least two carers with him) so there is quiet a large amount in that bank account.
If they check the account with the bank they will see that all that money was paid in by the benefits agency direct and mother drew it out as and when money was needed – ie - £3,000 for a bed and £7,000 for an electric wheelchair.
Am I obliged to tell them how much is in there – and – can they claim it back as part of mother’s estate? I have had to borrow money off my siblings to pay for the funeral – over £4,000, as they have told me not to spend any of mother’s money as they may wish to claim it back – but it won’t be hers they are claiming it will be my brothers. I am really worried about getting into any trouble over this, but equally I don’t want my brother’s money to be taken into account for her savings – when it isn’t. Mother had left the remainder of her accounts to be divided between my and my siblings but as you can tell after the £4,000 is taken off there won't be a lot left - so it's not about the money it's about the principle of it all.
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hi thanks for your question.

tdlawyer :

My name is Tony. I can help with this.

tdlawyer :

The sensible thing to do is to tell them how much was in that second account, but to make clear that this was not her money and is not money that is in her estate. She held this "on trust" for your brother, and it does not belong to her.

JACUSTOMER-8o0xihn9- :

That is what I thought - but, if they decided to ask for some of it, would I have recourse in law to not hand if over - ie make them take me to court to explain ! I don't want to get involved and risk becoming a criminal - but feel that as my brothers appointee, I should be doing my best not to let them just take it ! If they do, then his new chair and holiday will be gone through no fault of his own. Is there any agency I can contact on this ? I understand that you cannot get involved but was hoping you could advise me on who could help if they decided to try to claim it.

tdlawyer :

To be honest, your best bet is to get a solicitor involved to act for you. As you know, I can't do that, but I do think this is the best option.

tdlawyer :

There is a tribunal that you can approach if you don't agree with any decision of the benefits agency, and you can get details of it here, but you an appropriately worded solicitors letter might be a better option (https://www.gov.uk/appeal-benefit)

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