Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
Under present law, if a person has over £23,250 in capital (including any property), they must meet their own Nursing Home fees. If a spouse remains residing in the property, the property can NOT be included in the assessment of the party who has entered a Home.
The local authority have the power to reverse any transactions which it believes were made with a view to depriving oneself of assets for the purpose of avoiding care fees. In practice, the closer the transaction occurs to the point at which an individual may need care, the greater the risk of that transaction being set aside by the local authority.Therefore any proposed gifts of money or property would be seen as your parents deliberately depriving themselves for the purpose of avoiding the payment of care fees.Hence there is therefore a very large risk that any gift of the property/monies could be reversed by the local authority, whether the property be transferred to the children or is sold and the proceeds given to the children.
The only effective thing your parents could do, if it is indeed practical bearing in mind your parents condition,s is for them both to make Wills, to incorporate a life interest trust in their respective Wills giving their respective shares in the property to a third party (normally the children) subject to right of occupancy for the survivor.This at leasts protects one half of the value of the property, as it would pass to you children on the death of your first parent, and won't be assessed as belonging to your surviving parent, when calculating their capital for Nursing Home fee purposes. This can be done even though your Mother is already in a Home, but their Solicitor will have to make sure that they both have mental capacity before preparing their Wills.
I am sorry this is not the answer you were looking for, but it sets out the legal position.
I hope this assists you.
Can I assist you any further?
thanks for your answer,i just have a couple of questions which you could advise me on.
now my parents are both in care how do I get power of attourney, to be able to pay outstanding, and ongoing bills etc.
I know my parents have made wills but have no idea where they are,or would they be registered with a soliciter etc.
lastly, at what point would I have to sell the property, to fund care,and when the pot dropped below 23k would that then remain and the care become free so to speak.
thanks again neil
Thanks for your reply.
As regards ***** ***** Attorney, this is only possible if your parents instigate matters and sign a Lasting Power of Attorney (LPA) in your favour. Your parents do, however, need to be of sound mind to make an LPA.
If eiher or both of them are not mentally capable of making an LPA, you would have to apply to the Court of Protection to become their Deputy. This is a long winded process but is the only way you could legally become entitled to deal with your parents financial affairs.
As regards ***** ***** your parents have made, there is no central place whereby Wills are registered, so you will need to go through your parents papers to find out where they are kept. It would be normal for their Solicitor to be holding them.
As rgeards care fees, no one will force your parents to sell, but by the same token, they will have to make sure they have sufficient funds to pay the fees, and therefore this would normally entail having to sell the property. You are correct- once their capital reduces to £23,250 this amount is protected, and your parents will be able to keep this amount and won't have to use it to pay any further care fees.
I hope this helps.