Can I sell jointly owned home whilst husband in care home?

[Maggiejigs]

Apologies for starting a new thread on this subject. I did find information on another thread from early 2022 but thread was so long - and mainly about allowances - that I felt my question would be lost!

My husband has bvFTD and went into a nursing home in 2021. We are self funded and so far are ok financially - I opened a bank account in his name and his Attendance Allowance, State Pension and half his private pension are paid into this account. I have to take £4000 a month from his savings to cover the monthly shortfall in fees - yes almost £7000 a month!!!!! I dread the day the savings run out, but that’s another story for another day.

i have always thought that if I sold our jointly owned home that half the proceeds would immediately go to my husband. However when I stated this as an answer to a question on a support group forum I was told this was incorrect. I am told I can sell my house to downsize but when I buy another house it must be in our joint names and half any monies left split between myself and my husband. I understand the latter part but how can I sell jointly owned home if husband does not have capacity to sign paperwork - does LPOA give me this power or do I have to seek permission from a higher authority.

i have asked legal expert who works with a support group I belong to but he has told me that as the question is hypothetical he cannot help me - needs to be an instruction 🤔

 

[canary]

Hi @Maggiejigs

Selling the jointly owned family home and buying another when one party is in a care home can be complicated.

The main thing is that the person in the care home must not lose any finance.
So, you can either do as you suggested ie - sell the house, put half the proceeds into an account in his sole name and then use the other half to purchase a house in your sole name; or you can sell the house, buy another in joint names (either jointly or tenants in common) and then split the rest 50-50. Either solution will retain his assets. What you cant do is sell the house, buy another in your sole name and then split the remainder.

In order to sell a jointly owned property you will indeed need either a financial POA, or deputyship with permission to sell the home and purchase another. However, you cant use this to sign for him and sign for yourself, so you have to use another person. If the POA/deputyship has another person named then that person can sign for your husband. If not, then you have to apply for another person to represent his interests, but I cant remember what they are called, or how you go about it. Im sure someone else will know, but if not, your solicitor will certainly know.

 

[nitram]

If the POA/deputyship has another person named then that person can sign for your husband. If not, then you have to apply for another person to represent his interests, but I cant remember what they are called, or how you go about it. Im sure someone else will know, but if not, your solicitor will certainly know.

They are called a trustee.
The solicitor acting for the house sale will be able to draft a simple document.

 

[Maggiejigs]

Hi @Maggiejigs

Selling the jointly owned family home and buying another when one party is in a care home can be complicated.

The main thing is that the person in the care home must not lose any finance.
So, you can either do as you suggested ie - sell the house, put half the proceeds into an account in his sole name and then use the other half to purchase a house in your sole name; or you can sell the house, buy another in joint names (either jointly or tenants in common) and then split the rest 50-50. Either solution will retain his assets. What you cant do is sell the house, buy another in your sole name and then split the remainder.

In order to sell a jointly owned property you will indeed need either a financial POA, or deputyship with permission to sell the home and purchase another. However, you cant use this to sign for him and sign for yourself, so you have to use another person. If the POA/deputyship has another person named then that person can sign for your husband. If not, then you have to apply for another person to represent his interests, but I cant remember what they are called, or how you go about it. Im sure someone else will know, but if not, your solicitor will certainly know.

Thank you for this explanation.

 

[Maggiejigs]

Sorry didn’t complete my answer - so either my son/daughter can sign on behalf of my husband as they both Attorneys 🤔

 

[nitram]

Sorry misunderstood.
With you and your husband as joint owners no trustee is required, you and either of the attorneys (assuming joint and several) can sign, no trustee required.

If the LPA does not contain a clause about selling the property I don't think an LPA has to apply to the COP for permission.
Best ask solicitor as applying for permission would be both expensive and lengthy.

 

[Maggiejigs]

Sorry misunderstood.
With you and your husband as joint owners no trustee is required, you and either of the attorneys (assuming joint and several) can sign, no trustee required.

If the LPA does not contain a clause about selling the property I don't think an LPA has to apply to the COP for permission.
Best ask solicitor as applying for permission would be both expensive and lengthy.

Thank you.

 

[Kas 0103]

Hi @Maggiejigs

Selling the jointly owned family home and buying another when one party is in a care home can be complicated.

The main thing is that the person in the care home must not lose any finance.
So, you can either do as you suggested ie - sell the house, put half the proceeds into an account in his sole name and then use the other half to purchase a house in your sole name; or you can sell the house, buy another in joint names (either jointly or tenants in common) and then split the rest 50-50. Either solution will retain his assets. What you cant do is sell the house, buy another in your sole name and then split the remainder.

In order to sell a jointly owned property you will indeed need either a financial POA, or deputyship with permission to sell the home and purchase another. However, you cant use this to sign for him and sign for yourself, so you have to use another person. If the POA/deputyship has another person named then that person can sign for your husband. If not, then you have to apply for another person to represent his interests, but I cant remember what they are called, or how you go about it. Im sure someone else will know, but if not, your solicitor will certainly know.

Hi @canary this is somewhat at a tangent, but my husband and I married late and I now live in the house he owns. I have PoA with his daughter. If he needs care and the savings run out, it would seem I cannot be made homeless and be forced to sell the house, but does it mean I could not ever downsize if I needed to? I don’t know why you would know the answer to this, but you seem as if you have had experience… Thanks!

 

[Maggiejigs]

Hi @canary this is somewhat at a tangent, but my husband and I married late and I now live in the house he owns. I have PoA with his daughter. If he needs care and the savings run out, it would seem I cannot be made homeless and be forced to sell the house, but does it mean I could not ever downsize if I needed to? I don’t know why you would know the answer to this, but you seem as if you have had experience… Thanks!

@Kas 0103 - not sure if I am allowed to promote other sites on here but if you do Facebook there is a brilliant page that I have found recently which is worth joining. It is run by a couple who are experts in the field and info is free - Safeguarding Futures Health & Social Care Support. They told me that I was wrong about the house selling issue I had - that is why I asked on here and @canary confirmed for me what they had told me. Now that I have read up about the couple who started the FB Page I will doubt no more!

 

[Maggiejigs]

Sorry - forgot to say they also have a website - www.safeguardingfutures.co.uk - if you scroll to bottom you will see info about FB page. Hope this helps you.

 

[canary]

Hi @canary this is somewhat at a tangent, but my husband and I married late and I now live in the house he owns. I have PoA with his daughter. If he needs care and the savings run out, it would seem I cannot be made homeless and be forced to sell the house, but does it mean I could not ever downsize if I needed to?

As far as I can see, so long as there is nothing in the POA preventing this, there is no legal reason why you could not sell the house using POA and downsizing, but the new property would have to be in his sole name and all other money made from the sale would have to go into an account/invested in his sole name too. This would almost certainly mean that he would become self-funding again. You may also find that his daughter objects.

 

[Kas 0103]

Sorry - forgot to say they also have a website - www.safeguardingfutures.co.uk - if you scroll to bottom you will see info about FB page. Hope this helps you.

That’s brilliant, I’ll check it out, thank you so much!

As far as I can see, so long as there is nothing in the POA preventing this, there is no legal reason why you could not sell the house using POA and downsizing, but the new property would have to be in his sole name and all other money made from the sale would have to go into an account/invested in his sole name too. This would almost certainly mean that he would become self-funding again. You may also find that his daughter objects.

Thank you so much for this. His daughter wouldn’t blink an eye - his son would!

 

[Maria P]

@nitram and @Kas 0103 and anyone else who has experience that may assist me please. My friend's husband got early onset at the age of 50 and now, 12 long and sad years later is in a council care home. Their house has been disregarded but has a charge on it.
She desperately wants to move homes for all the unhappy memories there and she and I wish to buy together and stay together for company. We are now in our 60's.
I know she can sell the marital home and buy elsewhere (within 25 weeks or reasonably longer).

My question is, can I buy with her so that we have a three way tenants in common (her husband, herself and me) and assuming Surrey Council moves the charge from the current house to the new house, will they force me to sell if she passes away before her husband so that the council can get her husbands 1/3 rd share of the new house?

My question has not been satisfactorily answered by lawyers or financial advisors. (bit vague for legal people). So any opinions and experiences shared would valued.

Thank you very much,
Maria

 

[nitram]

Assume there is a deferred payment agreement.
If the house is sold the loan from the council will have to cleared and fees plus interest paid.
How is the house owned. sole, joint tenants, or tenants in common?

The husband share of the proceeds of the house sale is likely to make him self funding meaning a new application for deferred payment could be made if required, the council may not agree to this.

will they force me to sell if she passes away before her husband so that the council can get her husbands 1/3 rd share of the new house?

Only applies if there is a deferred agreement.
Who is beneficiary of wife's share?
Could the two of you afford to buy the new house, remember loan capital is being spent on care.
You could ask council for a redemption value.

What happens if you are the first to die, who gets your share?

 

[Maria P]

@nitram Thank you for your reply. There is no deferred payment. The current house is excluded because she is over 60 and still living there. But, there is a charge on it so council is notified if it is sold, I assume this is just to keep track of her husbands share of the house. She and her husband are tenants in common. My friend and their two adult children have LPA.

In answer to your questions - I would be the beneficiary of wife's share and vise versa.
In terms of affordability, she stopped working to care for her husband so this is why there is no money. However, with my savings put into a new property and the proceeds of the sale of their existing house we can buy together and enter a three way tenants in common.

Am I correct in understanding that on my friends passing before her husband the council would not force me to sell the house to obtain his share if there is no deferred agreement? The house was excluded. Unless the house being a disregard means it's a differed payment?

Please may I ask what a redemption value is? I'm assuming it's the value of his share if she passes first.

Thank you so very much (I just want to say that I have no problem in giving the council his share if she passes first, but I don't want to be taken by surprise and forced to sell at short notice)

 

[nitram]

The house is disregarded because his wife lives there, the charge on the house is a new approach.
Redemption value was his equity in the property if a deferred payment loan had been made and the loan used to pay care fees.
Ask the council what would if your friend predeceased her husband leaving you as sole occupant, any disregard would be discretionary, the answer could be 'wait and if it happens we will decide.
Buying him out would cost a third of the house value.

 

[Kevinl]

There's an interesting article on Money Saving Expert much as I hate to recomend another site other than here, but you will have to check as I understand the rules maybe different in other parts of the UK.
K

 

[Maria P]

the charge on the house is a new approach

Yes, it's a flag on the land registry. And because they are tenants in common the house cannot be sold by either one of them, it has to be done via the LPA members- i.e the kids.

 

[Maria P]

The house is disregarded because his wife lives there, the charge on the house is a new approach.
Redemption value was his equity in the property if a deferred payment loan had been made and the loan used to pay care fees.
Ask the council what would if your friend predeceased her husband leaving you as sole occupant, any disregard would be discretionary, the answer could be 'wait and if it happens we will decide.
Buying him out would cost a third of the house value.

Thank you so much for your help. It's good to get clarification. It seems the next step is the council.

 

[Maria P]

There's an interesting article on Money Saving Expert much as I hate to recomend another site other than here, but you will have to check as I understand the rules maybe different in other parts of the UK.
K

Hi Kevin, do you have the name of the article? There are a lot of articles on MSE. Thanks