Advice on completing a financial assessment form

Stressed Out

Registered User
Aug 9, 2014
18
Hi All

The dreaded form has arrived regarding depleted funds just concerned about the wording under the Declaration:-

"I understand that ?B.C may decide to place a legal charge on the capital value of any property I own and do not live in. I give consent to such a charge being made as part of a deferred payment agreement"

My question is "how legally binding is this form"? My Brother will have to sign the form as he's the financial representative. Property is jointly owned ,always lived there, has no plans on selling and under 60.

Is it worth sending a covering letter fighting your case?

As always any advice would be very much appreciated.
 

WILLIAMR

Account Closed
Apr 12, 2014
1,078
Hi All

The dreaded form has arrived regarding depleted funds just concerned about the wording under the Declaration:-

"I understand that ?B.C may decide to place a legal charge on the capital value of any property I own and do not live in. I give consent to such a charge being made as part of a deferred payment agreement"

My question is "how legally binding is this form"? My Brother will have to sign the form as he's the financial representative. Property is jointly owned ,always lived there, has no plans on selling and under 60.

Is it worth sending a covering letter fighting your case?

As always any advice would be very much appreciated.
Can you please clarify if the property is jointly owned by your brother and presumably the patient?.
If this is the case no charge should be placed on the property and your brother should not sign the form.

William
 

Stressed Out

Registered User
Aug 9, 2014
18
Hi William

Yes property is owned by him and parent who is in care, it also asks for current market value of the property which is pending at present.

Can't imagine they will fund the CH fees minus pension etc that's a shortfall of £400 approx p.w.
 

jenniferpa

Registered User
Jun 27, 2006
39,448
I think you need legal advice. Because he would be signing this form on behalf of your parent, not as himself. And it's a perfectly reasonable thing for the LA to ask. I do not believe that by signing he is agreeing to anything on his own behalf (for example, if you were the attorney, with no stake in the property, and you signed the form on your parent's behalf, it obviously couldn't commit any co-owners to anything), just on your parents. But as I say, you need legal advice.

All I can tell you is that if your brother fails to fill out the assessment there won't be any money forthcoming from the LA. Do bear in mind that these forms tend to be "one size fits all" so they may not account for individual situations. I would say that that it is in fact OK to sign the form but I'm not so sure I wouldn't put the value of your parents share of the property as whatever your brother would be prepared to pay for it. Please, speak to a specialist solicitor though.
 

nitram

Registered User
Apr 6, 2011
19,704
North Manchester
I agree with jenniferpa that the form should be completed and returned to prevent the whole process stalling, I also agree that you should take legal advice.

FWIW my first instinct would be for your brother to sign the form as 'brother POA parent' and enter the value of the property as 'Open market value of 50% share of occupied property, to be determined' but do take professional advice.
 

WILLIAMR

Account Closed
Apr 12, 2014
1,078
Hi William

Yes property is owned by him and parent who is in care, it also asks for current market value of the property which is pending at present.

Can't imagine they will fund the CH fees minus pension etc that's a shortfall of £400 approx p.w.
http://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS38_Treatment_of_property_in_the_means-test_for_permanent_care_home_provision_fcs.pdf?dtrk=true

Take a look at paragraph 5.1 of the above.
Basically because your brother is a joint owner and has the right to live in the property the parents share is worthless for care home fees purposes and he should not sign the form.
If the LA insists you need to get legal advice.
I have helped sons / daughters who had inherited the deceased parents half of the property and the LA wanted the property sold to pay the fees and the offspring refused.
Some of them invited the LA to take them to court but it never happened.
They were in a fortunate position where the parent was bed blocking in hospital and it was clear the parent could not be let on to the street.
After a lot of argument most got full NHS funding.
What did happen was the son's / daughters were asked to sign they would take responsibility for the fees if at any point the parent ceased to qualify for NHS funding in the future.
Knowing the hospital wanted the parent out they refused as the hospital had no alternative to transferring the parent to the home.

William
 

Stressed Out

Registered User
Aug 9, 2014
18
Hi Jennifer

Thank you for your reply I am inclined to agree with you the form is worded for her but he needs to protect his own interests at the same time.

It is tricky one and it is looking likely we need legal advice they offer free clinics just might give them call.

Why is nothing simple it certainly pays not to leave things too late with the LA looks like it will take months to resolve.

Thanks again
 

Stressed Out

Registered User
Aug 9, 2014
18
Hi William

Thanks for the link interesting reading, next week I will call into the Council Office and just explain the situation and then just take it from there. Delaying it by another week or two won't hurt.

Appreciate all your comments on this, I will keep you posted on the outcome.
 

Katrine

Registered User
Jan 20, 2011
2,839
England
I have no technical advice to add, but thought I would offer an additional comment. From the LA's POV, your mum's house is a capital asset against which a deferred charge may be made. That's quite reasonable. However, to calculate that she has a capital asset worth 50% of the property's market value is inaccurate. This would only be true if your brother wished to sell.

I think it would be useful for your brother to refer to the property as HIS house, and HIS main residence, but that his mother is the co-owner. He should resist and refute all assertions that the property is his mother's house in which he happens to have a beneficial interest.

I am probably not expressing myself very well, and am probably only restating what others have said better in the light of their direct experience. What I am trying to highlight is the need for a clear 'position statement' pending the specialist legal advice that you need.

While not denying that your mum co-owns her former home, nor wishing to delay or obstruct the completion of necessary documentation, your brother should not allow the LA to push for him to sign anything based on their agenda. His interests, and your mother's interests, must be considered carefully. BTW, if it's your brother's house and he also has POA, then I doubt if anyone at the Council offices will be willing to talk to you because of data protection. Would it not be better for your brother to send them a short letter explaining the basic facts, saying he is unable to provide a valuation figure at present, and stating that he is seeking professional advice.
 
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jenniferpa

Registered User
Jun 27, 2006
39,448
parents share is worthless for care home fees purposes
I don't disagree broadly with that

and he should not sign the form.
but I do disagree, really quite strongly, with this if your brother is your parents attorney. By refusing to sign the form he is putting himself in an invidious position vis a vis his duty in this role.

I agree with nitram

'Open market value of 50% share of occupied property, to be determined'
seems a perfectly reasonable approach to take.
 

WILLIAMR

Account Closed
Apr 12, 2014
1,078
I don't disagree broadly with that



but I do disagree, really quite strongly, with this if your brother is your parents attorney. By refusing to sign the form he is putting himself in an invidious position vis a vis his duty in this role.

I agree with nitram

seems a perfectly reasonable approach to take.
Hi jenniferpa

If you look through CRAG and Age Concern Factsheet 38 the Mother's share is not worth anything if the brother is not willing to sell.
Nobody will buy half a house with somebody in it for possibly the next 50 years.
The LA wanted houses to be sold to pay the parents care fees or alternatively put a charge on the property. The LA said the proceeds would have to be divided.
In one case the property was worth about £800,000 and the daughter said she was an owner occupier and she would not permit the sale or a charge to be put on the property.
She sold the property after the father passed away and purchased a smaller property.

William
 

jenniferpa

Registered User
Jun 27, 2006
39,448
As I said, I'm not disputing the value of the property (and I have to say, William, I've probably been reading CRAG for far longer than you). What I'm saying is that advising an attorney to not sign a financial assessment on behalf of the donor is positively reckless without clear guidance from a legal professional.

Further

In one case the property was worth about £800,000 and the daughter said she was an owner occupier and she would not permit the sale or a charge to be put on the property.
She sold the property after the father passed away and purchased a smaller property.
is frankly irrelevant to the discussion which is: should the OP's brother sign the form? Do please bear in mind that when you are appointed as an attorney you are legally required to act in the best interest of the donor, and failure to fill out a financial assessment seems to me to fall squarely into to the category of "failing to to act in the best interests of the donor".

Note: I'm not saying that the OPs brother shouldn't get legal guidance, because he should, but your blanket statements and irrelevant anecdotes are not only not particularly helpful (in the case of the anecdotes) they could be actively dangerous.
 
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LYN T

Registered User
Aug 30, 2012
6,962
Brixham Devon
Hi William

Thanks for the link interesting reading, next week I will call into the Council Office and just explain the situation and then just take it from there. Delaying it by another week or two won't hurt.

Appreciate all your comments on this, I will keep you posted on the outcome.
Hi Stressed out.

I would like to just add to the concerns shown by Jennifer. If you delay for too long the LA may come to the conclusion that your Brother has not given the financial information they requested (obviously) and will then start to charge your parent as a self funder.If financial assets are not disclosed they are able to take this action.

In my opinion being told not to sign the form is NOT good advice-at least until you have taken legal advice. If a Solicitor is willing to back you up on this course of action, and they put it in writing to the LA, that's a different scenario.

I wish you good luck-it is a minefield:(

Lyn T XX
 

WILLIAMR

Account Closed
Apr 12, 2014
1,078
As I said, I'm not disputing the value of the property (and I have to say, William, I've probably been reading CRAG for far longer than you). What I'm saying is that advising an attorney to not sign a financial assessment on behalf of the donor is positively reckless without clear guidance from a legal professional.

Further



is frankly irrelevant to the discussion which is: should the OP's brother sign the form? Do please bear in mind that when you are appointed as an attorney you are legally required to act in the best interest of the donor, and failure to fill out a financial assessment seems to me to fall squarely into to the category of "failing to to act in the best interests of the donor".

Note: I'm not saying that the OPs brother shouldn't get legal guidance, because he should, but your blanket statements and irrelevant anecdotes are not only not particularly helpful (in the case of the anecdotes) they could be actively dangerous.
Hi jenniferpa

All I can say is a solicitor advised somebody I knew not to sign that a charge could be put on a property as the representative of the mother. The daughter had inherited her father's half of the house and had lived in it since birth and was still living in it with the mother.
I am not saying solicitors are always correct.
As it happened it was later found the mother qualified for CHC funding and she died within weeks.
Possibly the LA may have pursued it had she only qualified for LA funding.

Oddly another solicitor advised a son to pay top up as there were no available care homes in the area at the LA usual rates. This was legally incorrect.


William
 

LYN T

Registered User
Aug 30, 2012
6,962
Brixham Devon
Hi jenniferpa

All I can say is a solicitor advised somebody I knew not to sign that a charge could be put on a property as the representative of the mother.


Oddly another solicitor advised a son to pay top up as there were no available care homes in the area at the LA usual rates. This was legally incorrect.


William
William-several posters are advising the OP to possibly take advice from a solicitor; if a solicitor DOES advise this course of action i.e. not signing-great. However, it's not good for TP'ers to give out that advice as being correct as we are not legal eagles.

Re your second point. Whilst LA's should (by their own criteria) pay a higher rate if a usual rate home is not available to meet a persons needs-it is not illegal if a person agrees to pay a top up if . for example, the person paying wishes to see a loved one safe and settled in a CH sooner rather than later-for example if a person is in a less than homely MHU. I know I would have done anything to get my OH out of a secure ward-however great the care. There is a difference between 'not advisable', 'not necessary' , 'stand your ground' and illegal. It is only illegal to pay top ups if the person is receiving CHC.
 
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Stressed Out

Registered User
Aug 9, 2014
18
Hi All

Appreciate all your comments and good advice and yes it is a minefield not to mention the stress!

As I have spare time on my hands I will pop into the LA office and explain the situation taking into account the Data Protection Act.

Thankfully Mother is fully settled in a LA funded care home and not a bad price compared to some.

Don't know what I would do without this forum it's a godsend.

Thank you
stressed out
x
 

LYN T

Registered User
Aug 30, 2012
6,962
Brixham Devon
Hi All

Appreciate all your comments and good advice and yes it is a minefield not to mention the stress!

As I have spare time on my hands I will pop into the LA office and explain the situation taking into account the Data Protection Act.

Thankfully Mother is fully settled in a LA funded care home and not a bad price compared to some.

Don't know what I would do without this forum it's a godsend.

Thank you
stressed out
x
The stress involved with paperwork is terrible isn't it? If possible could you get back to us with your findings? It could prove very helpful to people in the same situation.

Take care

Lyn T XX
 

Pete R

Registered User
Jul 26, 2014
2,044
Staffs
However, it's not good for TP'ers to give out that advice as being correct as we are not legal eagles.
Should that statement then not equally apply to those that advised that the form should be signed?:confused:

It is only illegal to pay top ups if the person is receiving CHC.
Admittedly you cant pay top up's in the same way as with LA funded care but it is not totally "illegal", is it?
This quote from the NHS website...."The only way that NHS continuing healthcare packages can be topped up privately is if you pay for additional private services on top of the services you get from the NHS. These private services should be provided by different staff and preferably in a different setting."
 

LYN T

Registered User
Aug 30, 2012
6,962
Brixham Devon
Should that statement then not equally apply to those that advised that the form should be signed?:confused:

Admittedly you cant pay top up's in the same way as with LA funded care but it is not totally "illegal", is it?
This quote from the NHS website...."The only way that NHS continuing healthcare packages can be topped up privately is if you pay for additional private services on top of the services you get from the NHS. These private services should be provided by different staff and preferably in a different setting."
I think, without exception, the posters saying that the form should be signed also took the view that a Solicitor/legal advise should be sought-and mentioned this.

Ah yes! I should have stated the bit about private services -sorry fellow readers:) I was writing about the services from the NHS-sorry if that was not clear.I must have more caffeine in the morning