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Order of Assets.

Goldleaf88

Registered User
Jul 30, 2018
31
Hi,
I am Deputy of property and finance. Sadly looking into residential care home for my aunt with severe dementia. It's getting very difficult for me to care. I am wondering...
A) she has minimum savings, a cottage in Ireland and a house in London - me and my 13yo daughter live and care for her in London. If the LA got involved re funding, what order would they take the money for CH fees?
Obviously her savings of £7k would go first, would they have jurisdiction in Ireland or come after the London house. As we live there (with a minor) it complicates it.
I want to pay the remainder of fee split with bros in cottage in Ireland, but he is being VERY difficult and does not want to pay. Then the LA does not have to get involved at all.
Does he get to live rent free in her cottage whilst me and my daughter worry about our home with her?
Any thoughts greatly appreciated
 

Louise7

Registered User
Mar 25, 2016
1,779
The LA will conduct a financial assessment and include the total value of your Aunt's assets - both houses. There are some circumstances where a property can be disregarded: https://www.alzheimers.org.uk/get-support/legal-financial/who-pays-care

your home will not be taken into account if one of the following people also lives in the property, and will continue to live there after you have moved into a care home:
  • a husband, wife or civil partner
  • a close relative over the age of 60
  • a dependent child
  • a relative who is disabled or incapacitated.
If your house is also the permanent home of someone who has been caring for you, for as long as they are living there, your local authority has discretion to decide whether or not to include the value of the home in the assessment. This applies especially in cases where the carer has given up their own home to care for you.

You could try applying for a discretionary disregard from the LA although that would only apply to the property you are living in, not the property in Ireland.

If there was no disregard, as deputy you would then need to arrange for her care fees to paid from her assets. The LA would just want the payment - they won't be interested in what 'order' you realise the assets. You could request a deferred payment arrangement from the LA to see if they will agree to place a charge on a property, but I’m not sure if they would be able to do this on the property in Ireland. This would mean that the LA would pay the care fees (up to a certain amount), plus charge interest on top, with repayment to be made either when the house is sold or when your Aunt passes away. Anyone living in a property with a deferred payment on it would be expected to pay full market rental, plus as financial deputy you would need to ensure that any decisions made on behalf of your Aunt didn’t benefit you financially. I don't know whether they would place a charge on one property when there is another one available to be sold though - I suggest that you get specialist legal advice about your situation as the circumstances are not 'standard'.
 

nitram

Registered User
Apr 6, 2011
19,905
North Manchester
In this case as deputy (or attorney), and unless a prohibiting clause has been inserted, you have a right to see any will.

If one of the properties is a direct bequest and the other is a residual you should sell the one that is not a bequest first as this is more closely following her intentions.

However as a 13 year old is living in the London property this will be disregarded in any LA financial assessment meaning that they will be pushing for the sale of the Irish property if a DPA is not possible

https://www.lawsociety.org.uk/support-services/advice/practice-notes/access-and-disclosure-of-an-incapacitated-persons-will/ .

You may have to register to view this, it's free, and you don't have to be a member of the legal profession
 
Last edited:

Jessbow

Registered User
Mar 1, 2013
2,988
West Hertfordshire
However as a 13 year old is living in the London property this will be disregarded in any LA financial assessment meaning that they will be pushing for the sale of the Irish property if a DPA is not possible
Will it, if the 13 year old is NOT a dependant of the PWD?
 

nitram

Registered User
Apr 6, 2011
19,905
North Manchester
Will it, if the 13 year old is NOT a dependant of the PWD?
Looks like it's not mandatory but there is a good case for discretion.

.... a property must be disregarded where it is

occupied as their main or only home by one of the following:
....
c.a relative or family member of the adult who:
i. is aged 60 or over, or
ii. is a child of the adult aged under 18, or
iii. is incapacitated.

...
Page 9

 

nitram

Registered User
Apr 6, 2011
19,905
North Manchester
Will it, if the 13 year old is NOT a dependant of the PWD?

Further to

https://forum.alzheimers.org.uk/threads/order-of-assets.120767/post-1700654 .

I have dug a little deeper and found the granddaughter is included in the list of people for a mandatory disregard:-

35. For the purposes of the disregard a
relative is defined as including any of the following:

(a) Parent (including an adoptive parent)
(b) Parent-in-law
(c) Son (including an adoptive son)
(d) Son-in-law
(e) Daughter (including an adoptive daughter)
(f) Daughter-in-law
(g) Step-parent
(h) Step-son
(i) Step-daughter
(j) Brother
(k) Sister
(l) Grandparent
(m) Grandchild
(n) Uncle
(o) Aunt
(p) Nephew
(q) Niece
(r) The spouse, civil partner or unmarried
partner of a to k inclusive.

 
Last edited:

Shedrech

Volunteer Moderator
Dec 15, 2012
8,754
Yorkshire
not so sure about mandatory disregard ... I have a feeling this has come up before and it was taken that
the grandchild in their teens
is certainly a relative as in c.
but
is not
i. 60 or over
ii a child of the grandparent
iii incapacitated (not mentioned in the post)

sorry, can't remember whether a discretionary disregard was considered
 

Alex54

Registered User
Oct 15, 2018
271
Newtown, Wales
It is really a complicated issue but whatever you do please don't leave it up to the local authority to sort out as they do not have your best interests at heart. Do not make it easy for the LA, tells them in writing that both properties should be disregarded (from the advice posted by other users) and that as the savings are below the lower limit, your Aunt satisfies all the requirements for 100% funding by the LA.

As a side note, the law was changed a few years ago, and LA cannot put a charge against property outside the UK, which means they cannot force a sale to recover the amount incurred.
 

nitram

Registered User
Apr 6, 2011
19,905
North Manchester
Did not find anything useful in CA2014

I did find an Ombudsman's decision quoting the statuary guidance regarding a grandchild as part of his argument for a discretionary disregard.
The decision was:-
There was fault in the way the Council decided not to apply a discretionary disregard to Property A. This has caused Miss X the injustice of not knowing if the Council has properly considered the matter. I have found no fault in the way the Council decided not to apply the mandatory disregard to Property A. The Council has agreed to take steps to put things right and I have completed my investigation.

https://www.lgo.org.uk/decisions/adult-care-services/charging/15-020-436 .


As said don't take the councils word for it, especially from non financial people.
 

canary

Registered User
Feb 25, 2014
11,630
South coast
not so sure about mandatory disregard ... I have a feeling this has come up before
Yes I remember it coming up too. I cant remember the outcome, but I do remember that the wording was rather ambiguous on whether the grandchildren of the PWD living in the home counted as meeting the mandatory disregard or not.
 

nitram

Registered User
Apr 6, 2011
19,905
North Manchester
Assuming the asset in Ireland makes the total assets in excess of £23250 a DPA may not be possible

"Do the new DPA regulations mean that local authorities have to enter into a DPA with an individual who has more than £23,250 in wealth other than their main or only home?

No, the mandatory DPA scheme still includes a requirement that an individual has £23,250 or less in assets other than their main or only home. In this regard the mandatory criteria for DPAs, as set out in Regulation 2(1) of the DPA regulations, remain unchanged."

https://www.local.gov.uk/our-support/our-improvement-offer/care-and-health-improvement/care-and-support-reform/implementation/charging-and-financial-assessment/deferred-payment-agreements/new-deferred-payment-agreement-dpa-legislation-faqs-february-2018 .
 

Jessbow

Registered User
Mar 1, 2013
2,988
West Hertfordshire
Yes I remember it coming up too. I cant remember the outcome, but I do remember that the wording was rather ambiguneiceous on whether the grandchildren of the PWD living in the home counted as meeting the mandatory disregard its a GT or not.
Its a great neice, NOT a grandchild

( So thats the PWD's siblings grandchild, not hers)
 

Shedrech

Volunteer Moderator
Dec 15, 2012
8,754
Yorkshire
Hi @Jessbow
Canary and I were remembering a previous member's situation
I appreciate that here the niece is looking after her aunt, and the niece's daughter is living with them
 

Jessbow

Registered User
Mar 1, 2013
2,988
West Hertfordshire
So it is.
No chance of a disregard.
Thats what I thought.

I dont think the person that is saying that the other property cant be considered because its overseas is correct either.

Chances are , both properties will be part of the assesment of wealth ( for want of a better word) and how they are realised to pay for her care will be for the two resident 'lodgers' to argue out
 

ebas

Registered User
Aug 8, 2019
78
It is really a complicated issue but whatever you do please don't leave it up to the local authority to sort out as they do not have your best interests at heart. Do not make it easy for the LA, tells them in writing that both properties should be disregarded (from the advice posted by other users) and that as the savings are below the lower limit, your Aunt satisfies all the requirements for 100% funding by the LA.

As a side note, the law was changed a few years ago, and LA cannot put a charge against property outside the UK, which means they cannot force a sale to recover the amount incurred.
Regarding the side note. My partner went into a Dementia Nursing Home last Monday funded by LA. I haven't had to do the financial review yet. He has about £6000 & a half share of a property in Spain which when sold his share will be £23000 maximum. The apartment is already up for sale but it could take months if not years to be sold as there are loads of properties for sale. What happens if it is not sold when the £6000 is gone? I own the other half & can not afford to buy him out