Deprivation of assets
- Thread starter kingmidas1962
- Start date
I know you don't want this revisited Saffie-but I too am concerned that fellow TPer's my find themselves in a bit of bother. I have LPA so no accounts to produce on a yearly basis; however, even though my OH has CHC funding, I still operate his funds as I did when he was paying. For example I've had to sell the car recently (in Pete's name) because the poor old banger (the car that it) was needing expensive repair after expensive repair. So I bought a second hand, hopefully, more reliable car. Now I think I'm right in saying that the OPG allows a Deputy or LPA holder to replace the car out of the Doner's funds (as long as you don't buy anything fancy.
I think the LA are against this. Even though I paid all of the bills/insurance etc to keep the old car on the road I paid for the replacement car out of my own funds and put the pittance I received for the old car in Pete's account.
I only use the half of Pete's Teacher's Pension that the LA allows me.
I would love someone to tell me that I can use more of his funds-but I don't think I can as far as the LA are concerned
Take care
Lyn T
Lyn, I know your situation is a little different with LPA and CHC funding but I do agree with you that certain principles are similar.
In an effort to understand why someone said that she had found my comments negative and causing her unnecessary worry, I have looked at the few posts the poster has made. I think I am right in assuming that her husband is still at home and, until you have found yourself in a situation, it is difficult to realise the difficulties that can arise.
I sincerely hope that the lady never finds herself in the situation that involves the LA, then those worries will remain forever unneccessary.
I shall from now on hesitate to post any advice where financial or legal matters are concerned. I have managed to acomplish so much with legal and financial matters since joining TP and gaining so much advice and encouragement from members, that I thought I might be able to remain here and pass on relevant information when it was asked for. It is obviously not welcome so I will refrain in future.
Let's face it, it will make my life a lot less stressful!
In an effort to understand why someone said that she had found my comments negative and causing her unnecessary worry, I have looked at the few posts the poster has made. I think I am right in assuming that her husband is still at home and, until you have found yourself in a situation, it is difficult to realise the difficulties that can arise.
I sincerely hope that the lady never finds herself in the situation that involves the LA, then those worries will remain forever unneccessary.
I shall from now on hesitate to post any advice where financial or legal matters are concerned. I have managed to acomplish so much with legal and financial matters since joining TP and gaining so much advice and encouragement from members, that I thought I might be able to remain here and pass on relevant information when it was asked for. It is obviously not welcome so I will refrain in future.
Let's face it, it will make my life a lot less stressful!
Wrong, Saffie, your advice is very welcome. I know you've helped a lot of people, particularly when it comes to your personal experience of Deputyship, and I for one would be quite cross if you decided not to post in this area in the future.
Thank you Jennifer. Your help and advice has always been extremely valuable to me and without it, I doubt I would have coped as well as I did.
I can understand how you feel Saffie - after the loss of my mum (quite suddenly) recently I'm finding it difficult to deal with her affairs, keep an eye on dad & still sort out MIL's care bills etc (hubby & I have EPA). She recently had another assessment for CHC &, unsurprisingly, failed eligibility. I know I could probably fight it however I just don't have the energy left anymore.
Please keep coming onto this forum & helping others with advice, it would be such a loss to us all if you didn't.
Just one point that this thread has made me ponder - Lyn's having to replace the car that she uses but is in her hubby's name so therefore the LA treat it as his possession. Many couples, us included, own a vehicle that is used by both & is funded by joint finances but you can only register it under one name. That's obviously how the LA are getting away with treating it as Lyn's husband's property. How many of us will fall foul of that? The only way we could get around it is, once a partner appears to be in need of future care, the carer will have to register the car in their own name. If I was ever in that position I would love for the LA to try & accuse me of deprivation of assets - although we paid for our car from our joint account it was MY pension lump sum that paid for it! It's amazing that marriage is seen as a partnership in every sense but not when it comes down to the LA!
Keep well Saffie,
Angie
Please keep coming onto this forum & helping others with advice, it would be such a loss to us all if you didn't.
Just one point that this thread has made me ponder - Lyn's having to replace the car that she uses but is in her hubby's name so therefore the LA treat it as his possession. Many couples, us included, own a vehicle that is used by both & is funded by joint finances but you can only register it under one name. That's obviously how the LA are getting away with treating it as Lyn's husband's property. How many of us will fall foul of that? The only way we could get around it is, once a partner appears to be in need of future care, the carer will have to register the car in their own name. If I was ever in that position I would love for the LA to try & accuse me of deprivation of assets - although we paid for our car from our joint account it was MY pension lump sum that paid for it! It's amazing that marriage is seen as a partnership in every sense but not when it comes down to the LA!
Keep well Saffie,
Angie
Ditto
Thank you Jennifer (and others) for reassuring Saffie that her considerable experience would be wasted if she felt unable to post on this matter in the future
Take care
Lyn T
Sorry Saffie maybe I wanted to be an ostrich about the future and what dementia will bring
Thank you RC. Lyn and Stovey.
Stovey, I sincerely hope that you never do have a battle with the LA. They are not demons and have their job to do but they are quite obdurate on what they see as their right to assetts.
Even the visitor from the OPG said that they were often not fair.
If and when the time comes, it will be up to you to find your entitlements rather than rely on the LA to do so, though the assessor can often be helpful as mine was. The problem is that any decision doesn't lie with the assessor.
p.s. Can't believe I'm still here!
Stovey, I sincerely hope that you never do have a battle with the LA. They are not demons and have their job to do but they are quite obdurate on what they see as their right to assetts.
Even the visitor from the OPG said that they were often not fair.
If and when the time comes, it will be up to you to find your entitlements rather than rely on the LA to do so, though the assessor can often be helpful as mine was. The problem is that any decision doesn't lie with the assessor.
p.s. Can't believe I'm still here!
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Oh Stovey
Quite a few of us have put our heads in the sand-I have for one.
The best advice I can give is to take in the information as you need it-if that would help YOU.
Others need all of the information all at once-whatever suits.
Also remember that we are always here on TP to give/advice/reassurance or plenty of shoulders to cry on-whenever you need it.
Take care
Lyn T
Ditto what Jenifer wrote.
I never intended to dispute with you Saffie: Off the back of your experiences, (which none of us would know about if you had not posted), I merely wanted to make the many points, that in some circumstances there appears to be the ability to use the law at far less cost than that of entirely self funding or contributing via incomes, to nursing home costs.
Much of what I wrote is backed by legal opinion/experience of it's use. And some was of course speculative/questioning.
For example, I have our local Police's financial crimes unit investigating the actual forgery and possible fraud that happened when various DST's (and other internal documents)were altered or falsely completed by the panel.
I know of at least nine other people with such evidence locally. Yet none has the will or perhaps energy to get involved. (One has just become elected to public office so it is no surprise that they wanted to stay out of it.)
Everyone seems to experience this differently and that is part of the problem in getting so called consistency in the use of the National Framework.
This Police investigation has led to a second written refusal by the NHS and the LA to correspond.
That is foolish in extremes as it has affected my ability to appeal other relative's cases. (They obviously think that no one has more than one relative in care homes).
Are they getting the jitters? I sincerely hope so.
Once again Saffie, I did not intend what I wrote, to annoy you. XXX
Saffie can I ask.......a friend's 78 year old father had applied for Deputy (for both financial and health) five months ago for his wife with severe dementia and we are assuming it won't be much longer before it is finalised. Do you have any advice on what he should do, does he have to pay a yearly fee or something? Anything else? Thanks.
I shouldn't have looked, should I! Well, here goes then -
Five months is a long time. Mine took three but I did ask for it to be fast-tracked though I don't think it was. Mine involved having to appoint a Trustee to act for my husband in the sale of a jointly owned holiday home too which of course, involved a number of extra forms and more time. So I would ring the CoP and ask why the delay. It could be due to the H&W application I suppose.
I didn't apply for the Health and Welfare Deputyship and have to say that never really needed it. Even when requesting my husband's medical notes from the Hospital for the CHC application, I said that I was fulfilling my duty as his Deputy in applying and needed the notes to help gain a successful outcome.
Regarding paying a yearly fee. Yes there is a supervision fee as well as a Bond to be paid. The supervision fee used to depend on the size of the estate which in turn affected the level of supervision. I think this changed to a blanket charge over a certain level of capital a couple of years back but will have to check that out.
The bond is also dependent on the size of the estate.
The reason for the bond is that it is a form of insurance in case the Deputy absconds with the funds!
For some reason I only ever had to pay for a Bond at the start of the Deputyship and not annually. My husband on the mid level of supervision so I'm not sure why but it definitely said a 'single payment' and I wasn't going to query it!
There is also an annual report to be completed, which can be very onerous. I have to say I hated it. It does mean keeping careful records of expenditure and income with receipts for the whole year.
I hope that helps a bit.
p.s. Yes, the graded scale of fees was replaced by a general fee of £320 p.a. for all supervision of cases above the threshold of £18,000 in October 2011. That threshold increased to £21,000 in April 2014, by which time the £320 might well have increased too but I haven't been informed of it.
Five months is a long time. Mine took three but I did ask for it to be fast-tracked though I don't think it was. Mine involved having to appoint a Trustee to act for my husband in the sale of a jointly owned holiday home too which of course, involved a number of extra forms and more time. So I would ring the CoP and ask why the delay. It could be due to the H&W application I suppose.
I didn't apply for the Health and Welfare Deputyship and have to say that never really needed it. Even when requesting my husband's medical notes from the Hospital for the CHC application, I said that I was fulfilling my duty as his Deputy in applying and needed the notes to help gain a successful outcome.
Regarding paying a yearly fee. Yes there is a supervision fee as well as a Bond to be paid. The supervision fee used to depend on the size of the estate which in turn affected the level of supervision. I think this changed to a blanket charge over a certain level of capital a couple of years back but will have to check that out.
The bond is also dependent on the size of the estate.
The reason for the bond is that it is a form of insurance in case the Deputy absconds with the funds!
For some reason I only ever had to pay for a Bond at the start of the Deputyship and not annually. My husband on the mid level of supervision so I'm not sure why but it definitely said a 'single payment' and I wasn't going to query it!
There is also an annual report to be completed, which can be very onerous. I have to say I hated it. It does mean keeping careful records of expenditure and income with receipts for the whole year.
I hope that helps a bit.
p.s. Yes, the graded scale of fees was replaced by a general fee of £320 p.a. for all supervision of cases above the threshold of £18,000 in October 2011. That threshold increased to £21,000 in April 2014, by which time the £320 might well have increased too but I haven't been informed of it.
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Thank you both Saffie and Jennifer
The H & W will be granted but I think the delay is because the GP held on to the form (from solicitor) for so long and got forgotten about until chased by solicitor again. The GP needed to visit the donor to check she lacks capacity and this part has now been done. Providing the GP completes the necessary to signal to OPG or solicitor that his part of the process is done, then I guess the rest will follow.
Thanks for the update of the fees - will pass these details to friend's father. Very costly exercise!
I am a bit confused. the way I read section 21 of CRAG (see below) LA if an asset was transferred more than six months before residential care is required it is disregard? Anyone agree? If so why would LA go back more than 6 months?
From CRAG April 2014
Section 21
2. This Section applies where a resident has transferred an asset to a third party with the intention of reducing his liability for charges. It provides that the third party shall be liable for the difference between the amount assessed as due to be paid by the resident and the amount which the LA receive from him for his accommodation.
Deprivation of assets
2.1 In order for Section 21 to apply, the LA must have decided that the resident has transferred an asset to someone else with the intention of avoiding charges for accommodation. The transfer must have taken place no more than six months before admission to residential accommodation (or six months before resuming occupation in the case of a resident who has been absent from such accommodation). Also, the resident must either have received no consideration for the transfer or any consideration must have been less than the value of the asset.
The six months before residing in Part 3 accommodation rule for disposing of assets can only be applied from the date a local authority has assessed a person as needing residential care under the Part 3 of the National Assistance Act, and has arranged a placement in a local authority home or independent sector home. The six month rule does not apply where a resident is self-funding in an independent sector home, has not been assessed, nor had their placement arranged by a local authority.
From CRAG April 2014
Section 21
2. This Section applies where a resident has transferred an asset to a third party with the intention of reducing his liability for charges. It provides that the third party shall be liable for the difference between the amount assessed as due to be paid by the resident and the amount which the LA receive from him for his accommodation.
Deprivation of assets
2.1 In order for Section 21 to apply, the LA must have decided that the resident has transferred an asset to someone else with the intention of avoiding charges for accommodation. The transfer must have taken place no more than six months before admission to residential accommodation (or six months before resuming occupation in the case of a resident who has been absent from such accommodation). Also, the resident must either have received no consideration for the transfer or any consideration must have been less than the value of the asset.
The six months before residing in Part 3 accommodation rule for disposing of assets can only be applied from the date a local authority has assessed a person as needing residential care under the Part 3 of the National Assistance Act, and has arranged a placement in a local authority home or independent sector home. The six month rule does not apply where a resident is self-funding in an independent sector home, has not been assessed, nor had their placement arranged by a local authority.
Hi Angie,
Car Registration does not prove ownership. One might be the Registered Keeper but the owner is the person that can prove they paid for it.
There is also a certain argument as to who is the main user if you bring insurance law into it too.
Joint assets are also arguably one persons by virtue of the fact that they and not the other uses them, often argued when assets are argued over.
And yes one might almost consider divorce when splitting assets. On a purely hypothetical and glib basis, it might actually get you more of the assets than CRAG permits.
Especially things that might be considered as part owned or paid for by another for you or promised to you.
A Court might well award them and then the users of CRAG would have to whistle, by the looks of it. After all if a Court awarded them then you cannot have deliberately deprived the council of them.
I did say it was hypothetical... Please don't go doing it just 'cos I said so! Once again just trying to make a point that might expose the silliness of some of the rules.
Nope. IN simple terms AIUI the issue here is that where the transfer is within 6 months (e.g. giving away a car or selling it at below trade price) the LA can automatically start to recover the money from the Third Party. Transferring an asset before the 6 months may still cause a problem but it's harder for the LA to recover - it can't easily do so from a Third Party but can form the donor.
W
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