We have recently been advising a number of families where an elderly parent needs to go into residential care. At Howlett Clarke we take a holistic approach in considering a person’s situation and any legal issues they may face; the issue of care is an area where this approach is incredibly useful.
There is often widespread resentment felt by families when seeing their sick and elderly relatives having to pay for care home fees, which can run at over £1,500 a week which is £78,000 a year. This is difficult, especially when people have worked hard and saved carefully all their lives and suddenly they are in a situation where they may have to sell their family home. It’s important to reflect on this and to consider how this might in fact affect you and how best to plan.
Firstly, it’s worth remembering that fewer people have to go into care than feared. Approximately 416,000 people live in care homes (Laing and Buisson survey 2016). This is 4% of the population aged 65 years and over, rising to 16% of those aged 85 or more. It doesn’t affect every family.
The need for care can be a gradual or sudden one. A parent could become infirm over the years, needing extra support to manage day to day. Alternatively, they might have a stroke and need a high level of support on returning home from hospital. Either way it can be a very difficult time for all concerned.
How can I protect my family?
On leaving hospital it is important that your relative has what is referred to as a ‘discharge assessment’ which considers what help they may need on going home. In addition, make sure they have what irs referred to as a ‘Care Needs Assessment’. This is carried out by the Local Authority and applies irrespective of what money or savings a person has. If they have assets over £23,500 then they will be expected to pay for the full cost of their care.
If the majority of their needs are ‘nursing’ needs which are ‘unpredictable’ and ‘complex’ then they may be eligible for free NHS funded continuing healthcare. In such cases their care will be completely free and this applies both in a care home setting or if they remain at home. Working out whether they are entitled can be quite baffling; there is a lot to consider so feel free to give us a call if you want to discuss this further.
Make sure they claim all necessary state benefits that they would be entitled to ‐ the two main non-means tested benefits are Attendance Allowance if they are over 65 and need help (£57.30 or £85.60 a week if they need help both day and night) and Registered Nursing Care Contribution of £158.16 per week which is paid directly to the home if they are in a nursing home.
Where both elderly parents are still alive, they should consider reviewing their Wills. It is possible to leave the share of the first to die in a trust which can protect the survivor from care home charges. This involves changing the ownership of the house from joint tenants to tenants-in-common.
Will the house have to be sold to fund residential care?
After 12 weeks of moving into care, a person’s house will be taken into consideration unless-
- a spouse or partner lives there
- a relative over 60 or under 18 lives there
- it is the permanent home for a carer (but not in all cases)
- a disabled relative lives there
When considering residential care there are a lot of matters to consider. The Local Authority may offer what is called a ‘deferred payment’- this is a system where people don’t have to sell their homes immediately to pay for their care. Payment for their care can be delayed until a later date or after death when payment can be made for their estate.
Parents may be tempted to give the family home away to the next generation, or to give a share of the house to a relative (e.g. a son or daughter) who moves in, but this step is problematic. More often than not we would advise our Clients not to do this, but of course every person’s situation is different. Any deliberate deprivation of assets can be challenged by the Local Authority, who could apply to have the gift reversed. There is no time limit to how far they can look back if they think there has been a deliberate deprivation. The greater the time between the gift and going into care the less likely the Local Authority will be willing to devote resources to challenging it. Again, this area of law is rather complex so please make sure you are aware of the law and armed with all the necessary information before rushing into anything.
Dealing with these issues can be emotive and difficult, so make sure you have as much information as possible and feel free to give us a call to talk the issues through.