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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12088
Experience:  30 years as a practising solicitor.
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Partners mother signed house into his name...

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Partner's mother signed house into his name 10 years ago. Part of that agreement was that she would not have to go into a care home if she didn't want to (right of residency?) She is now 91 and he has been looking after her all this time, now it's getting too much and dementia is setting in. Is there a way round this sort of agreement? (Scots Law)

Thank you for your question.

Can you tell me exactly what the relevant wording of the agreement is please?
Customer: replied 3 years ago.

I have not seen the actual document drawn up by the solicitor, but the main point is that she can stay in her own home as long as she wants - that is she doesn't have to go into a care home if she doesn't want to. I have been told this is right to residency.

That is what I'm trying g to establish as you have raised two possible scenarios.

The first is that she transferred title but reserved to herself the right to stay in the house for life. That is known as a liferent and is embodied in the title deeds.

The second scenario is that she transferred the house but enterd into a contractual agreement that she would not be put into a nursing home and that your partner would be her carer.

In the first scenario, there is no obligation for your partner to care for her and if he is not able or willing to do so any longer then the nursing home option would be based on her ability or otherwise to care for herself.

If, however, the second scenario exists then your partner has a contractual obligation to care for her and not out her into a nursing home.

This of course is academic on both fronts as mother is not in a position to enforce such a right especially as the onset of dementia could make the contract impossible to perform.

I think that your partner at the end of the day has to do what he considers to be in the best interests of his mother rather than get hung up on a contract which, whilst entered into with the best of intentions, is no longer a practical solution to the present issue.
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