Making gifts for tax planning purposes on behalf of someone lacking capacity
The sale of property, usually a home that will no longer be needed if a parent is moving permanently to a care home, is an obvious option as it creates available capital to help pay for the cost of care fees. The parent’s property could be placed on the market and the sale proceeds used to fund their care if they are moving to a care home but only if no-one else is living in the property. This last qualification can be problematic where a son or daughter has lived in the family home all their life, something that may be likely in the event that they have remained in order to look after their parent.
An individual may be eligible for the local authority to pay towards the cost of their care if they have more than £23,250 in savings. Their ability to pay for care will be calculated through a means test and, if moving into a care home permanently, the value of their current home will not be included if a spouse/partner still lives there (or, in certain circumstances, a relative). Although it may seem a good idea to transfer property out of the parent’s name to avoid it being assessed as part of the means test, this should be approached with caution. If the property would have been included in the assessment and the local authority believe that it was transferred to avoid care costs, it can carry out the assessment as if the property is still owned by the parent. The home will be included in the means test at its present market value less any mortgage that may be in place and any potential expenses involved in selling it.
If a daughter or son has lived with the parent requiring care their whole life, they may have occupational rights in relation to that family home and this could mean the value of the family home cannot be taken into consideration on any financial assessment. The question of whether a person has an occupational right over a property is one of fact and will be assessed per individual circumstance. ‘Occupation’ is not a legal term and therefore does not have a single legal definition and so is a tricky concept.
If the mother in this situation was able to sell the house then the proceeds would belong to her as the property owner which would then be included in the assessment as part of the means test to establish whether she is able to pay for her own care. It is likely that sale proceeds from a property will mean that she would then meet the threshold for being able to afford to pay for her own care – the savings threshold for local authority funding in England is currently £23,250.
The care funding system is incredibly complex and every case is unique, so you should seek advice before taking action in relation to paying for care. Age UK provides comprehensive guidance on paying for residential care but as the law surrounding care provision is very complicated, we would suggest seeking advice from a solicitor before proceeding.
Anita Gill is a partner in our Private Client team specialising in Court of Protection work. Anita’s main role is acting as a professional deputy for individuals who have lost the capacity to make their own decisions and are no longer able to manage their property and financial affairs.
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