Has anyone had/got this problem. My mother in law has dementia and is living in a nursing home - paid mostly for by the Council due to my father in law living in their home. My father in law has now died but several months before he died he changed his will to leave his half of the property to his children. We have a health power of attorney on mum and have a health and wealth power of attorney for Dad. The problem we now have is an empty house that we cannot sell as half belongs to mum. We could apply to the Court to look after mums interest but this is very expensive and takes upto 2 years seemingly. Mum is 96. We presume the Council will now ask for 100 per cent of the care fees to be paid and put a debt on the house upto half the value (mums half). I wonder whether as the house cannot be sold the value of the house is zero? - Can anyone advise? Thanking you so much.
Dementia legal problems
- Thread starter Wait
- Start date
Welcome to DTP @Wait. Can I offer condolences for the loss of your father in law.
I assume you have taken some legal advice and from what your write it looks complicated. We have members with more experience than I, but the Alz Soc have a helpline who may be able to give you a different perspective on the situation, you can find the details at https://www.alzheimers.org.uk/dementiaconnect.
I assume you have taken some legal advice and from what your write it looks complicated. We have members with more experience than I, but the Alz Soc have a helpline who may be able to give you a different perspective on the situation, you can find the details at https://www.alzheimers.org.uk/dementiaconnect.
The power of attorney for Dad ceased on his death, the executor now has a duty to carry out the terms of the will.
Unlike its predecessor CRAG The Care Act 2014 makes no mention of the free market value of half a house meaning it's up to each case to be decided individually.
It's likely the LA will ask for the house to be sold because it would be difficult for them to put a charge on half a house.
I don't think you have any option other than apply to the court for permission to sell the house, a free emergency application to release money for care can be made at te same time as the main deputy application.
You can't rent out the property as one of the joint owners lacks capacity.
You need to take professional advice to see what options you have.
Unlike its predecessor CRAG The Care Act 2014 makes no mention of the free market value of half a house meaning it's up to each case to be decided individually.
It's likely the LA will ask for the house to be sold because it would be difficult for them to put a charge on half a house.
I don't think you have any option other than apply to the court for permission to sell the house, a free emergency application to release money for care can be made at te same time as the main deputy application.
You can't rent out the property as one of the joint owners lacks capacity.
You need to take professional advice to see what options you have.
Hello @Wait and welcome to Talking Point.
I am slightly confused because to start with you talk about your mother in law and your father in law and then talk about your mum and dad. Are these in fact the same people?
It is not uncommon to have a will that leaves your half of the house to your children instead of your spouse - my OH and I have exactly the same arrangement. This way, if I die before OH he ill have to move to a care home, but only half the value of the house will be considered his assets, not all of it.
This is the thing, you see. As the husband has died the house is no longer exempt and your mums (mum in law?) share of the house is now considered part of her assets. This makes her self-funded and the care home fees will have to be paid one way or another. Is the problem that no-one holds POA for finances for her now? If this is the case, you will have to apply to the Court of Protection for deputyship and the authority to sell the house. You can request the court to fast-track this application. If you do not wish to apply yourself, then (assuming that no-one has POA for finances) Social Services will apply instead, but be warned - they will not apply on your behalf and a solicitor would be appointed to manage her finances.
I am slightly confused because to start with you talk about your mother in law and your father in law and then talk about your mum and dad. Are these in fact the same people?
It is not uncommon to have a will that leaves your half of the house to your children instead of your spouse - my OH and I have exactly the same arrangement. This way, if I die before OH he ill have to move to a care home, but only half the value of the house will be considered his assets, not all of it.
This is the thing, you see. As the husband has died the house is no longer exempt and your mums (mum in law?) share of the house is now considered part of her assets. This makes her self-funded and the care home fees will have to be paid one way or another. Is the problem that no-one holds POA for finances for her now? If this is the case, you will have to apply to the Court of Protection for deputyship and the authority to sell the house. You can request the court to fast-track this application. If you do not wish to apply yourself, then (assuming that no-one has POA for finances) Social Services will apply instead, but be warned - they will not apply on your behalf and a solicitor would be appointed to manage her finances.
The value of the house isn't zero. She owns half of it, and *whoever* owns the other half.
Granted you cannot sell half a house, I'd be worried thatby changing his will if M -in-law was already in care, that she has been deprived of assests, if his previous will had been in place donkeys years.
Please seek advice from a solicitor
Granted you cannot sell half a house, I'd be worried thatby changing his will if M -in-law was already in care, that she has been deprived of assests, if his previous will had been in place donkeys years.
Please seek advice from a solicitor
It shouldnt Deprivation of assets, because the other half of the house has never belonged to MIL - it belonged to FIL and he is entitled to leave it to whoever he wishes.
The LA may be able to force a sale
6.1 Valuation of jointly owned property
...
...
In the case of Wilkinson v CAO [2000] EWCA civ 88, the purpose of a
gift of property was not to provide a family home. Mrs Wilkinson’s share
in a jointly owned property came to her as an inheritance on her mother’s
death. It was an absolute gift to Mrs Wilkinson and her brother, in equal
shares, with no restriction or other intended purpose.
The Judges decided by majority that a sale of the whole property could
subsequently be enforced thus creating a market value for Mrs
Wilkinson’s beneficial interest.
Seek advice if you are told that your beneficial property interest has a
value for the following reasons:
⚫ the local authority takes the value of your property and divides it by the number of joint owners
⚫ the local authority offers to be the willing buyer, or
⚫ any willing buyer would be able to force a sale.
6.1 Valuation of jointly owned property
...
...
In the case of Wilkinson v CAO [2000] EWCA civ 88, the purpose of a
gift of property was not to provide a family home. Mrs Wilkinson’s share
in a jointly owned property came to her as an inheritance on her mother’s
death. It was an absolute gift to Mrs Wilkinson and her brother, in equal
shares, with no restriction or other intended purpose.
The Judges decided by majority that a sale of the whole property could
subsequently be enforced thus creating a market value for Mrs
Wilkinson’s beneficial interest.
Seek advice if you are told that your beneficial property interest has a
value for the following reasons:
⚫ the local authority takes the value of your property and divides it by the number of joint owners
⚫ the local authority offers to be the willing buyer, or
⚫ any willing buyer would be able to force a sale.
I would say that the LA will claim it’s a depreivation of assets and claim the full value of the house to look after the MIL. A person can’t change their will after care needs are established to leave their share of the house to the child/children, it’s called deprivation of assets and can cause big problems for the family concerned.
Mother in law was not deprived of any asset.
Before the change in the will her asset was half a house.
After the change her asset was still half a house.
The in I’m very confused what is deprivation of assets?
surely before the will changed she would have inherited the whole house, now she’s deprived of half?
If MIL had given her half of the house to her children then before the change she had half a house and afterwards she had no house, so that is deprivation of assets - she had something and now she doesnt. Equally, if FIL had not changed his will and his half of the house went to MIL, who then gave it away to the children, that would be deprivation of assets too. But FILs half of the house was never hers, FIL changed his mind before she ever got it. You cannot count any possible inheritance as assets until you actually have it.
The husband may have willed his half of the house to his wife in his original will but was perfectly entitled to change his mind and leave it to his children or anybody else In his final will. His half of the house was never his wife’s property, never her asset. I am assuming the house ownership had been changed to tenants in common so that they had half of the property each. If it was still in joint names I’m not sure where you stand.
Deprivation of assets would be if large sums of the wife’s money had been given away to the family so that it couldn’t be used for her care.
Deprivation of assets would be if large sums of the wife’s money had been given away to the family so that it couldn’t be used for her care.
When the new will was made the house was held as tenants in common meaning they each held half a house.
Leaving the his half to his children is no different to leaving any other asset, e.g. investments, that he solely owned.
If the tenancy was changed from joint tenants to tenants in common there was not any deprivation, her financial interest was half a house both before and after the change.
If it was joint tenants the whole house would have passed to the wife outside of any will, on death the husband did not own any of the house.
I am so so confused.
you have a married couple presumably owning a house as joint tenants.
Originally husband’s will leaves his estate (half the house) to the wife whose already in care.
Hisband changes will to leave half the house to his children. Why would the authorities not say deprivation of assets as he has knowingly deprived his wife already needing care from being able to access the value she would otherwise have surely that’s the husband choosing to deprive his wife (and therefore the LA)?
My parents (joint owned house) have been told by a solicitor that my dad should not change his will from leaving everything to my PWD mother to leaving his half to me and)or sister as it would be called deprivation of assets. Even though mum is not needing or getting any care now because that change would have happened AFTER mum’s DIAGNOSIS and that’s all that matters.
We don't know that, it was more likely held as joint tenants and the tenancy was severed to allow him to bequeath his half.
Severing the tenancy to allow half the house to be bequeathed to anybody is common, it is a recommended approach on many sites, both legal and otherwise. It is not deprivation of assets even if the other joint owner is in long term care.
Either the solicitor was mistaken or they were misunderstood.
If the house is a joint tenancy then both parties have to agree to change it to tenants in common. I pushed for this years ago when my husband was suffering with depression and before he showed any signs of terminal cancer, just incase anything happened to me and he needed any form of long term care. Obviously it wasn’t needed as he left his will leaving everything to me but I changed mine so that my half of the house was left to our children.
@Cazcaz The solicitor may have been saying that it was too late for your Dad to do this if your Mum has lost capacity. However if they had already separated the ownership I see no reason why your Dad cannot leave his estate to whoever he wishes. (But I’m no solicitor!).
@Cazcaz The solicitor may have been saying that it was too late for your Dad to do this if your Mum has lost capacity. However if they had already separated the ownership I see no reason why your Dad cannot leave his estate to whoever he wishes. (But I’m no solicitor!).
No, any one of joint owners can serve a notice of severance on all the others, agreement is not required.
This notice can be served on a person lacking capacity.
Joint property ownership
Check if you're a joint tenant or tenants in common. Change from joint tenants to tenants in common, or tenants in common to joint tenants
I have been thinking about doing this, just in case. It would give my son a good chance of inheriting at least half of the house.
