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Selling house after lost capacity

including wills and probate
lisyloo2
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Selling house after lost capacity

#110514

Postby lisyloo2 » January 15th, 2018, 7:43 am

MIL has lost capacity and is in a nursing home.
FIL is at home but being reassessed and we believe in need of nursing care (alone, terrified of falling and high risk of falling). we believe it won’t be long before he is in care or hospital or dead.

She always refused POA and we are managing without for example I am the “appointee” with DWP and my niece has 3rd party access to Bank account with card.
We are in the process of doing POA for FIL and it’s being processed.

The question is simple really.
Do we definitely need guardianship under court of protection for MIL to sell the home?

It’s owned jointly and I suspect joint tenants (whatever the default one is) so if FIL dies then MIL will inherit.

Neither of them would be coming home and I forgot he dies we’ll need to pay for her care, if he goes into care then they’ll both be private payers. Her care and his home care are currently paid for by LA as home is currently disregarded.

Clitheroekid
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Re: Selling house after lost capacity

#110796

Postby Clitheroekid » January 15th, 2018, 8:32 pm

lisyloo2 wrote:The question is simple really.
Do we definitely need guardianship under court of protection for MIL to sell the home?

Unfortunately the answer's yes - although the correct term is `deputyship', the person appointed by the court being known as the deputy. As your MIL and FIL are joint owners they both need capacity to sell the house.

More information here - https://www.gov.uk/become-deputy

It's quite a convoluted and long-winded procedure, and you may prefer to deal with it through a solicitor - their fees can be paid out of your MIL's assets.

didds
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Re: Selling house after lost capacity

#110887

Postby didds » January 16th, 2018, 9:11 am

Secondary question:

If a house's owner does not have capacity, so cannot sell, and there is no POA/similar in place, and nobody applies to become a deputy - what happens to the house? Everybody has to wait for the owner to die so it can be inherited by somebody somewhere? What if the house's value is needed to fund care home fees in the interim?

Just intrigued :-)

didds

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Re: Selling house after lost capacity

#110977

Postby pochisoldi » January 16th, 2018, 12:42 pm

didds wrote:Secondary question:

If a house's owner does not have capacity, so cannot sell, and there is no POA/similar in place, and nobody applies to become a deputy - what happens to the house? Everybody has to wait for the owner to die so it can be inherited by somebody somewhere? What if the house's value is needed to fund care home fees in the interim?


One or both of the following occur

1) The local authority (LA) will take out a charge on the property (the debt then gets cleared by the personal representative when the property is sold).
2) The LA requests that the Official Solicitor gets involved.

(1) is almost a certainty, whether (2) happens or not probably depends on live expectancy, as it may be cheaper/easier to wait for the owners to die, or for one of the owners relatives to start taking an interest.

PochiSoldi

didds
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Re: Selling house after lost capacity

#110991

Postby didds » January 16th, 2018, 1:36 pm

Cheers PS. Without intending to derail the original thread the follow up to your help would be presumably nobody is likely to become interested in the process unless they are likely to gain by it - eg actually inherit something after the care fees are extracted.

which then either means 2) occurring - otherwise potentially the house ends up falling into ruin over time through neglect (ie not upkept), which doesn't help the LA with their charge on the property as less will be end up beign available. This when the term of care is probably years rather than months obviously.

didds

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Re: Selling house after lost capacity

#110994

Postby johnsm13 » January 16th, 2018, 1:46 pm

Make doubly sure the solicitor you choose makes an application which, once granted, will actually give you the power to sell the house.

We have been through this process but, extraordinarily, once the deputyship was granted we realised it didn't give us that power (I say extraordinarily as our solicitor was well aware that was the main reason for seeking deputyship in the first place).

We then had to fill in more forms and waste yet more time to get an additional level of deputyship which would grant us permission to sell the house.

So make sure your solicitor knows what they are doing.

Good luck during what I know must be a trying and frustrating time.

Mike

lisyloo
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Re: Selling house after lost capacity

#111022

Postby lisyloo » January 16th, 2018, 3:25 pm

Thanks for the comments so far.

FIL went into hospital last night but with a bewildering array of symptoms but we don't yet know what is wrong with him or how serious it is.
Suffice to say at 89 we are very concerned.

One reason to expedite getting deputyship would be if she got a reduction in the costs right now.
MIL's income is £159.35 per week (the minimum for a single person) made up of state pension and pension credit.
We pay £134.35 to the nursing home with around £25 left for personal items.
She currently owns half the flat but as it's currently FIL's home then it's disregarded for care fees, so I'm wondering if by the same token she will qualify for a reduction in the costs of deputyship.
If he dies then we will have to get deputyship, sell the flat and pay the care fees, but if she owns half a flat which is now an asset and not a home then she may not get a reduction.

Does anyone know?

Son and daughter would be willing to take on deputyship. They are beneficiaries after FIL.
I am going to check whether their handwritten will is valid next time I'm at their flat but I don't think it's any different to the intestacy laws anyway.

The "con" to doing deputyship is that if she dies first we don't need it as house passes directly to FIL and we are already in the process of getting POA for him.

Getting POA was very difficult and lengthy because finding people to do the "certificate" part was very hard as most of the people they know are already dead and GPs would not do it (on the basis they didn't know him well enough). They have been housebound for a while so really don't have many people who could do the job. I'm not sure if there is a similar requirement for deputyship but I'd be suprised if there isn't any similar due dilligence.

lisyloo
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Re: Selling house after lost capacity

#111032

Postby lisyloo » January 16th, 2018, 4:07 pm

Another scenario (which is where I came in) is that FIL is discharged to a nursing home.
He recently had his care visits from 1 to 2 and is very unsteady and at risk of falling and lives alone.
We think the time may have come for nursing care but obviously he'd need to ne assessed.
An assement has been requested and the care vists were increased prior to the assessment (not sure how that works but we're glad they agreed to it because it was hard for famiy to provide daily care).

If that happens then home will need to sold and deputyship will be needed for that and they will both become private payers.

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Re: Selling house after lost capacity

#111146

Postby CryptoPlankton » January 17th, 2018, 2:10 am

lisyloo wrote:Another scenario (which is where I came in) is that FIL is discharged to a nursing home.
He recently had his care visits from 1 to 2 and is very unsteady and at risk of falling and lives alone.
We think the time may have come for nursing care but obviously he'd need to ne assessed.
An assement has been requested and the care vists were increased prior to the assessment (not sure how that works but we're glad they agreed to it because it was hard for famiy to provide daily care).

If that happens then home will need to sold and deputyship will be needed for that and they will both become private payers.


If the hospital decides to discharge FIL to a nursing home they should carry out an assessment for NHS Continuing Healthcare (CHC) first. It isn't a good idea to volunteer that he has the means to be self-funding as they may "overlook" their obligation to do this. But the fact is that if he is assessed as having a "primary health need" then the NHS are responsible for all the costs associated with his care (including accommodation) regardless of his means.

Eligibility for CHC isn't granted lightly, but I thought you should be aware of the possibility if no one has mentioned it before.

lisyloo2
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Re: Selling house after lost capacity

#111158

Postby lisyloo2 » January 17th, 2018, 7:14 am

I would think it’s very unlikely in his case but thanks for the point.
The main issue is his mobility and risk of falls so just being frail and elderly.
I’m fairly sure it would be personal and not medical.

Does anyone know if she’ll qualify for a reduction in deputyship whilst the flat is a home and she is on minimum income?

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Re: Selling house after lost capacity

#111224

Postby Chrysalis » January 17th, 2018, 11:24 am

I don’t know about reductions in costs for applying for deputyship - have you tried looking at the gov.uk website or Citizens advice website? I’m pretty sure there are reductions in the cost of registering for Lasting power of attorney for low income but I don’t know about court of protection costs. It should be on a website somewhere!

lisyloo
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Re: Selling house after lost capacity

#111238

Postby lisyloo » January 17th, 2018, 11:53 am

I believe she will qualify for a reduction with the criteria being < £12K income.

I will suggest this because in 2 scenarios out of 3 (FIL goes into care, or FIL dies first) we will need it to sell the house. We won't need it if she dies first as house then passes to him but that's the least likely scenrio right now.
I will suggest it to my husband but it's not the right time for SIL with FIL in hospital.

We may also need to think about advance care directive although we will have POA.

Thanks all.

didds
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Re: Selling house after lost capacity

#111240

Postby didds » January 17th, 2018, 11:58 am

CryptoPlankton wrote:But the fact is that if he is assessed as having a "primary health need" then the NHS are responsible for all the costs associated with his care (including accommodation) regardless of his means.



There may be a nuance I am missing or it may be a postcode lottery, but in this part of the country long term health issues become the responsibility of Adult Social care, especially if post acute hospital visit. They will ascertain what bthe finiancial aspects are.

In fact, in many cases of non rehabilitation but ongoing health issues, post acute hospital visit may not even have any NHS input and it will in theory all be Adult Social services that handle it.

didds

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Re: Selling house after lost capacity

#111243

Postby lisyloo » January 17th, 2018, 12:09 pm

MIL went into a home this year.
I believe there is an NHS payment for the nursing part of her care, but I think it's about £120 and her LA fees are £670.

So I think LA pays the residental part which is the bulk of it and NHS pays for the nursing.

It's an interesting point as we had assumed they both be private payers at £825 per week.
I believe attendance allowance might also be "diverted", so I'll have to investigate what happens to that as well if they become private payers as that is not means tested.

CryptoPlankton
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Re: Selling house after lost capacity

#111375

Postby CryptoPlankton » January 17th, 2018, 5:49 pm

didds wrote:
CryptoPlankton wrote:But the fact is that if he is assessed as having a "primary health need" then the NHS are responsible for all the costs associated with his care (including accommodation) regardless of his means.



There may be a nuance I am missing or it may be a postcode lottery, but in this part of the country long term health issues become the responsibility of Adult Social care, especially if post acute hospital visit. They will ascertain what bthe finiancial aspects are.

In fact, in many cases of non rehabilitation but ongoing health issues, post acute hospital visit may not even have any NHS input and it will in theory all be Adult Social services that handle it.

didds


It is poorly advertised and administered (most likely because if it was executed as it should be it would probably bankrupt the NHS) but the NHS is legally obliged to pay for ALL costs where someone's need for care has been assessed as a "primary health need". The guidelines are set out in the National framework for NHS continuing healthcare and NHS funded nursing care:

https://www.gov.uk/government/publicati ... rsing-care

"In a hospital setting, before an NHS trust, NHS foundation trust or other provider
organisation gives notice of an individual’s case to an LA, in accordance with section 2(2)
of the Community Care (Delayed Discharges etc.) Act 2003, it must take reasonable
steps to ensure that an assessment for NHS continuing healthcare is carried out in all
cases where it appears to the body that the patient may have a need for such care. This
should be in consultation, as appropriate, with the relevant LA."


The decision is based purely on an overall assessment of the needs of an individual, not on their particular diagnosis or condition and takes into account many factors such as mobility, cognition, communication, continence, psychological needs and more. Strictly speaking, it should be only if/when NHS Continuing Healthcare has been assessed as not being appropriate that the NHS Funded Nursing Care (a little over £100 per week) can be granted.

It is a scandal that so few people are even aware of this, let alone getting assessed for it - and (presumably because it is so expensive for an already stretched NHS) they tend to make it a much more difficult and protracted process than the guidelines suggest it should be. However, unless they change the law, it is an entitlement that should be honoured.

Anyway, enough dredging up painful memories! But if anyone believes they or a loved one may have a case (see link below) they should approach their area Clinical Commissioning Group (CCG) - nothing to lose (except maybe one's time and patience) and a considerable amount potentially saved...

https://www.ageuk.org.uk/information-ad ... ealthcare/

P.S. Sorry to have taken this thread slightly off topic.

production100
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Re: Selling house after lost capacity

#111532

Postby production100 » January 18th, 2018, 10:13 am

It is poorly advertised and administered (most likely because if it was executed as it should be it would probably bankrupt the NHS) but the NHS is legally obliged to pay for ALL costs where someone's need for care has been assessed as a "primary health need".

You need to be there when the assessment is made and argue your case. In our experience they will do everything possible to lower the level of need so they do not have to pay. Typical example - are they in any pain? Their answer 'No'. Our comment: But the reason they are not in any pain is that they are on high levels of painkillers. So they are in considerable pain - hence the need for the painkillers. Changed answer to 'Yes'. This went on for most of the questions.

You have to fight for the correct answer to each and every question. Boring, frustrating, but necessary if you are to get the proper level of funding.

Chris

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Re: Selling house after lost capacity

#111577

Postby CryptoPlankton » January 18th, 2018, 11:57 am

production100 wrote:It is poorly advertised and administered (most likely because if it was executed as it should be it would probably bankrupt the NHS) but the NHS is legally obliged to pay for ALL costs where someone's need for care has been assessed as a "primary health need".

You need to be there when the assessment is made and argue your case. In our experience they will do everything possible to lower the level of need so they do not have to pay. Typical example - are they in any pain? Their answer 'No'. Our comment: But the reason they are not in any pain is that they are on high levels of painkillers. So they are in considerable pain - hence the need for the painkillers. Changed answer to 'Yes'. This went on for most of the questions.

You have to fight for the correct answer to each and every question. Boring, frustrating, but necessary if you are to get the proper level of funding.

Chris

It is a disgrace. The NHS is supposed to be freely available to anyone who needs it at the point of care (whether in hospital, nursing home or even, according to the guidelines, at home). If the government can't afford to deliver what the legislation demands then they should either provide more funds (ha ha) or change the legislation. They should NOT turn the process of deciding whether someone is entitled to their help into a deliberately obstructive bureaucratic nightmare. Without a close one to fight their corner, individuals who are too unwell to do it themselves have no chance.

Sadly, it seems the significant resources apparently employed to minimise the awards of NHS Continuing Healthcare (whole departments including experienced nurses diverted from actual nursing) still incur considerably less cost than providing it to everyone who should be entitled (according to the rules as they stand).

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Re: Selling house after lost capacity

#111582

Postby lisyloo » January 18th, 2018, 12:22 pm

P.S. Sorry to have taken this thread slightly off topic.


Absolutely not it's extremely helpful.

How would we get hold of MIL's assesment?
We were there but weren't aware of this.
The meeting (between family, hopital dimensia discharge co-ordinator and social services) was July 11th.
Would we be too late?

Here needs are two-fold.
At high risks of falls mainly due to arthritis.
Unable to make safe decisions due to dimensia e.g. might try to wak to the shops, would forget medication.

FIL's is medical but we know he would refuse treatment.
I think we might be on dodgy ground if he refuses treatment that could make him mobile.

CryptoPlankton
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Re: Selling house after lost capacity

#111629

Postby CryptoPlankton » January 18th, 2018, 2:35 pm

lisyloo wrote:
P.S. Sorry to have taken this thread slightly off topic.


Absolutely not it's extremely helpful.

How would we get hold of MIL's assesment?
We were there but weren't aware of this.
The meeting (between family, hopital dimensia discharge co-ordinator and social services) was July 11th.
Would we be too late?

Here needs are two-fold.
At high risks of falls mainly due to arthritis.
Unable to make safe decisions due to dimensia e.g. might try to wak to the shops, would forget medication.

FIL's is medical but we know he would refuse treatment.
I think we might be on dodgy ground if he refuses treatment that could make him mobile.

I would suggest contacting the hospital regarding your MIL to establish whether an assessment for NHS Continuing Healthcare (CHC) was carried out before discharge. I think it is too late to get it done retrospectively, but you can request one with the Clinical Commissioning Group (CCG) if there hasn't already been one with a review date set. To be honest, given what you have said, I would doubt she would qualify at the moment, but if you think differently (now or in the future if her condition worsens) then you should ask.

As far as your FIL is concerned, I would certainly have a word with the hospital to ensure that an assessment for CHC is carried out BEFORE discharge. If he is discharged to a nursing home then they are responsible for all costs of his care until a decision is made on his eligibility. I would not mention that he has the means to be self-funding as this seems to produce an attitude of assumption that he will be, which is completely wrong.

As didds suggested, I think there is an element of postcode lottery in all this. But I would definitely recommend getting clued up on the subject, possibly starting with the fact sheet provided by the site linked to at the end of my earlier post.


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