Depravation of assets

[Kellymarie322]

Help/advice required please:

Mum has Parkinson’s and dementia and in a care home long term

She has assets of a bungalow £350,000, £16000 savings and £1,000 government old age pension monthly

My sister has obtained this £16k and is withdrawing mums pension every month. She said mum gave her passwords to online banking

My sister owns her own house.

Mum always gave a lot of her money away and has indeed given more to myself than my sister over her lifetime

I am applying through court of protection as there is no power of attorney

My question is:

My sister has spent the money / would the local authority put a charging order on her property?

Would she be prosecuted for fraud/theft? (She has a signed letter from mum that she can access her bank account for what that’s worth)

We are both down as next of kin on her will

Opinions are not helpful thank you only advice please would be very much appreciated

@CovoidOfAllHumanity

Nothing will happen about it unless your mums money from the house sale isn't enough to cover the care fees and you apply to the LA to cover them. At that point they will do a financial assessment and they will be entitled to treat the missing ten thousand as though your mum still had it and decline to fund her care. That's what deprivation of assets means. The LA can't take back money but they can refuse to find care where money has been given away after the person knew that they had care needs.

Separately you could report it and a safeguarding investigation would take place but again they would not have any power to get the money back only the police can do that via a prosecution and that is very unlikely.

So for now as long as mum had money to pay for the care it will be fine but if that runs out the LA will ask qs.

Thanks very informative

I’m afraid your sister is stealing from your mother. If she has been diagnosed with dementia, she most likely doesn’t have capacity to consent. Obviously if she’s in care, she’s not been out and about so how did your sister get hold of the money? Unless the accounts are in both your mother and sister’s names jointly, it’s theft in the eyes of the law. Once your mothers’ social worker gets wind of this, your sister will be in deep trouble. She’d better be able to pay it back!

@CovoidOfAllHumanity

Nothing will happen about it unless your mums money from the house sale isn't enough to cover the care fees and you apply to the LA to cover them. At that point they will do a financial assessment and they will be entitled to treat the missing ten thousand as though your mum still had it and decline to fund her care. That's what deprivation of assets means. The LA can't take back money but they can refuse to find care where money has been given away after the person knew that they had care needs.

Separately you could report it and a safeguarding investigation would take place but again they would not have any power to get the money back only the police can do that via a prosecution and that is very unlikely.

So for now as long as mum had money to pay for the care it will be fine but if that runs out the LA will ask qs.

Stealing your mother’s money whilst she’s incapacitated is far from ‘fine’. It’s absolutely criminal and appalling!

Been through a similar situation to you OP. A DOLS assessment is completely normal and required by law, it will also be done more than once. Although it is usually not as intense as the first one.
With regards to your mum's finances, firstly whoever said her pension will be stopped just because she now lives in a care home is incorrect. My dad still receives his pension. DWP/ Social Services / Pension Service etc all aware of his situation.

However, your sister should not be taking any money from any of your mums accounts now. I had access to my dad's account etc, but I was not taking any money from it, unless it was to get things for him? What is she taking money for?
I dont know if you can make her see sense about this, but if you are applying for Deputyship is it just you or both of you?
If just yourself, if I was you I would contact her bank, in writing and keep a copy, explain the situation and ask them to freeze her accounts so your sister can not take any more money. If you need access to some of your mum's money you can in the interim ask the Pension Service if you can be an appointee I think it is and have her pension paid to you. They advise to keep it in a separate bank account and keep receipts for anything you send. This is usually for personal items, clothing, personal allowance at the home etc.
How long has your mum been in a home? Has your Local Authority not done an assessment to calculate her contribution towards her costs? As your sister still has access to her funds I'm assuming it's not been long?
Also ask for a Continuing Care Assessment I think it is called - she may be eligible to have her care costs paid for.

@Soontobe60

I’m afraid your sister is stealing from your mother. If she has been diagnosed with dementia, she most likely doesn’t have capacity to consent. Obviously if she’s in care, she’s not been out and about so how did your sister get hold of the money? Unless the accounts are in both your mother and sister’s names jointly, it’s theft in the eyes of the law. Once your mothers’ social worker gets wind of this, your sister will be in deep trouble. She’d better be able to pay it back!

My mum had said she would rather my sister have her money than the government

Mum worked hard all her life for the state to leave her with 25k

If you are applying through the COP as no POA is in place then I assume your mother does not have capacity to make the decision to give your sister the money.

When considering deprivation of assets the council will want to know did your mother have capacity. Was she receiving care or it was know she was likely to need care in the future? Was legal advice taken regarding the transfer of monies? What provision was in place for paying for future care?

It is one thing to give anyway a lump sum gift of monies as this is historically how your mother has manged her finances, it is a completing different thing to be taking her state pension.

I work in this area, if you approach my council for funding with the information you have provided I would be raising a safeguarding referral. The most likely outcome of this would we would expect your sister to repay the monies. in the meantime we would not fund if the amount of money taken would have brought her under the capital funding limit of £23,250.00 if she would have had capital under £23,250.00 we would fund with the money taken included in the assessment increasing her tariff income payment.

If the council was funding a charge would be put over the property from week 13 of funding unless she has already been in a care home self funding for 12 weeks or more and then the charge would be for day one the council starts assisting with funding.

Other councils may work slightly differently but will be broadly similar as they are following guidance from the Care Act 2014.

OP says her mum always gave a lot of
money to her children and the sister has a letter saying she can access the bank account
It's far from clear that this is stealing or that it is criminal or appalling. It might be in line with her mums wishes. A lot of people
voluntarily give money away to avoid care fees not knowing about the deprivation rules or they give money away to avoid death duties.
The state will regard it as deprivation of assets but it won't be prosecuted as a crime as it will not be able to be proven that the sister did not have a reasonable belief that she had permission.

@Hiphopboppertybop99

Been through a similar situation to you OP. A DOLS assessment is completely normal and required by law, it will also be done more than once. Although it is usually not as intense as the first one. With regards to your mum's finances, firstly whoever said her pension will be stopped just because she now lives in a care home is incorrect. My dad still receives his pension. DWP/ Social Services / Pension Service etc all aware of his situation. However, your sister should not be taking any money from any of your mums accounts now. I had access to my dad's account etc, but I was not taking any money from it, unless it was to get things for him? What is she taking money for? I dont know if you can make her see sense about this, but if you are applying for Deputyship is it just you or both of you? If just yourself, if I was you I would contact her bank, in writing and keep a copy, explain the situation and ask them to freeze her accounts so your sister can not take any more money. If you need access to some of your mum's money you can in the interim ask the Pension Service if you can be an appointee I think it is and have her pension paid to you. They advise to keep it in a separate bank account and keep receipts for anything you send. This is usually for personal items, clothing, personal allowance at the home etc. How long has your mum been in a home? Has your Local Authority not done an assessment to calculate her contribution towards her costs? As your sister still has access to her funds I'm assuming it's not been long? Also ask for a Continuing Care Assessment I think it is called - she may be eligible to have her care costs paid for.

Thanks very helpful

My sister is not a thief just ignorant and naive - mum has transferred money to my sister from her care home

Some days she is very sane - others she is not !

Deputyship would be myself only - my sister could not cope with it

Mums been in homes, hospitals for a year with strokes, falls and suchlike

It was all on hold after the stroke as she wasn't expected to live - thankfully she is still with us

@Hiphopboppertybop99

Been through a similar situation to you OP. A DOLS assessment is completely normal and required by law, it will also be done more than once. Although it is usually not as intense as the first one. With regards to your mum's finances, firstly whoever said her pension will be stopped just because she now lives in a care home is incorrect. My dad still receives his pension. DWP/ Social Services / Pension Service etc all aware of his situation. However, your sister should not be taking any money from any of your mums accounts now. I had access to my dad's account etc, but I was not taking any money from it, unless it was to get things for him? What is she taking money for? I dont know if you can make her see sense about this, but if you are applying for Deputyship is it just you or both of you? If just yourself, if I was you I would contact her bank, in writing and keep a copy, explain the situation and ask them to freeze her accounts so your sister can not take any more money. If you need access to some of your mum's money you can in the interim ask the Pension Service if you can be an appointee I think it is and have her pension paid to you. They advise to keep it in a separate bank account and keep receipts for anything you send. This is usually for personal items, clothing, personal allowance at the home etc. How long has your mum been in a home? Has your Local Authority not done an assessment to calculate her contribution towards her costs? As your sister still has access to her funds I'm assuming it's not been long? Also ask for a Continuing Care Assessment I think it is called - she may be eligible to have her care costs paid for.

My sister had the money for all sorts of things - basically half of it is spent

I have made sure it won't happen again

probate will flag up the large sum as over the 3k limit and will be taxed at 40% if estate is over limit etc so tell her to stop spending it....nobody will probe is house is sold to cover fees....my aunt gave us annual amounts of about 6k but had 500k in account and house worth 600k so not worried about any probing etc but we did have to pay tax later on those gifts...tax office knew all about the sums gifted...anything over 3k is automatically alerted to tax office etc !!

I meant to add....council wont probe for fees etc if there is money to self fund...they can access bank statements to check for avoidance etc...and go back a few years if looks like the person was heading for a care home....

@earsup

I meant to add....council wont probe for fees etc if there is money to self fund...they can access bank statements to check for avoidance etc...and go back a few years if looks like the person was heading for a care home....

Ok thanks .... would it be correct to say that presuming I sold mums house for £350k - LA would not probe missing £10k?

Care home fees are £1400 a week

It is unlikely but not impossible as long as the 350k lasted as long as they would expect it too and didn't run out too quickly.

Hi @Kellymarie322 - I've just read all your updates.
I'm sorry for your situation, it's very stressful and upsetting. I can empathise my dad deteriorated very quickly, and its such a lot to deal with especially on top of your own every day life.
No way was I saying your sister is a thief, it's just you will be accountable for her actions if you are applying for single Deputyship.
How is your mum transferring money to your sister from her care home? My dad did not have the ability to do this. I would be concerned about this. Your sister should be putting any money from your mum to one side, or transferring it back to her, especially now she is resident in the home. My dad's wallet and some of his personal belongings were given to me after he was 'settled' in the home.
However, with regards to the £10,000. When you complete your Deputyship forms, you will put balances of her Bank accounts. So for example if you say the balance is £10,000 in Account A and £5000 in Account B then in theory the £10k your sister has spent will probably go under the radar.
You do a review every year as a Deputy, bit like an income / expenditure report. So in the very least they would expect to see her pension received every month. I have expenditure such as clothing, toiletries, personal allowance to care home. I tend not to do gifts for birthdays or anything. All receipts are kept. You have to provide bank statements.
As PP have said if your mum is not entitled to funding for her care, then the local authority will do an assessment. Her income will be her pension. Her assets, the house and any savings. IIRC when you make the Deputyship application you specifically have to apply to be able to sell the house. Our local authority were happy for us to make a contribution from dad's pension and then apply for a deferred payment meaning that when he eventually passed and the house was sold the reamaining outstanding fees would be paid from the proceeds. Applying for Deputyship usually takes around 6 months. My advice is to get a solicitor - the forms are not straight forward. Also the solicitor costs can be paid from your muns money.
I think there is a little confusion regarding the issue of Deprivation of Assets. This is usually where, say your mum had transferred ownership of her house to your sister in the hope it would reduce the amount of her assets in the future. Transactions can be looked into going back 7 years. However, its a very difficult area to comment on, but I don't think it really applies in your case.
The issue of much greater concern is your sister taking Money from your mums account, given her circumstances.

You can decide to rent her house out if you like, the rent will also count as income. You may also need to complete a Tax Return on behalf of your mum as well.
Just to say The Office of Public Guardian who will oversee your Deputyship are very helpful and available for questions.
Good luck OP.

@Starterfor11

It is unlikely but not impossible as long as the 350k lasted as long as they would expect it too and didn't run out too quickly.

Thank you again - can I ask you would you expect LA to possibly apply for a charging order on my sisters property? She has a poor income and couldn't repay the 10k

@Hiphopboppertybop99

Hi *@Kellymarie322* - I've just read all your updates. I'm sorry for your situation, it's very stressful and upsetting. I can empathise my dad deteriorated very quickly, and its such a lot to deal with especially on top of your own every day life. No way was I saying your sister is a thief, it's just you will be accountable for her actions if you are applying for single Deputyship. How is your mum transferring money to your sister from her care home? My dad did not have the ability to do this. I would be concerned about this. Your sister should be putting any money from your mum to one side, or transferring it back to her, especially now she is resident in the home. My dad's wallet and some of his personal belongings were given to me after he was 'settled' in the home. However, with regards to the £10,000. When you complete your Deputyship forms, you will put balances of her Bank accounts. So for example if you say the balance is £10,000 in Account A and £5000 in Account B then in theory the £10k your sister has spent will probably go under the radar. You do a review every year as a Deputy, bit like an income / expenditure report. So in the very least they would expect to see her pension received every month. I have expenditure such as clothing, toiletries, personal allowance to care home. I tend not to do gifts for birthdays or anything. All receipts are kept. You have to provide bank statements. As PP have said if your mum is not entitled to funding for her care, then the local authority will do an assessment. Her income will be her pension. Her assets, the house and any savings. IIRC when you make the Deputyship application you specifically have to apply to be able to sell the house. Our local authority were happy for us to make a contribution from dad's pension and then apply for a deferred payment meaning that when he eventually passed and the house was sold the reamaining outstanding fees would be paid from the proceeds. Applying for Deputyship usually takes around 6 months. My advice is to get a solicitor - the forms are not straight forward. Also the solicitor costs can be paid from your muns money. I think there is a little confusion regarding the issue of Deprivation of Assets. This is usually where, say your mum had transferred ownership of her house to your sister in the hope it would reduce the amount of her assets in the future. Transactions can be looked into going back 7 years. However, its a very difficult area to comment on, but I don't think it really applies in your case. The issue of much greater concern is your sister taking Money from your mums account, given her circumstances. You can decide to rent her house out if you like, the rent will also count as income. You may also need to complete a Tax Return on behalf of your mum as well. Just to say The Office of Public Guardian who will oversee your Deputyship are very helpful and available for questions. Good luck OP.

Thanks that's very helpful

The transferring of money has now stopped - it was done when my sister visited my mum in the home via internet banking

What is concerning mostly is the missing £10k which can't be repaid

My sister is fragile and needs a lot of help - so I'm at a loss how I can protect her

She believed with my mum that it was ok - as I said naivity and ignorance

the gift was from your mum.....any charge orders would be on mums property....sell the house and pay the fees to avoid probing etc....you may have to pay interest on deferred fees so may be cheaper and easier to just sell the house etc....then your sister is off the radar as long as funds last while mum is in the home....all depends on how snoopy the council are...some are ruthless and others a bit slack..!

It's is very unlikely they would put a charge on your sisters house. They would just add 10,000k back into the assessment. For example if your mother had £10,000.00 in savings plus the £10,000.00 your sister has taken she would pay £24.00 extra a week of tariff income.

Your mum’s house will pay for a good four years of care. After that, if it becomes apparent that £10k has gone missing from her assets it’s possible that would be chased up but in all honesty I think it’s unlikely. - £10k is hardly worth them spending the legal money on chasing. And, in the kindest way, given your mum’s frailty do you think she will need care for longer than 4+ years?

@CovoidOfAllHumanity

Remember your mum is entitled to an assessment for continuing health care funding which would fund her care for free. It's hard to get it but if she is dying or she has very complex needs she may get it. She has a right to be assessed so ask the social workers if they have done the CHC checklist

this is what i was going to say. but remember there is little incentive for public officials to assist in this. it may be worth employing your own expert to make application for continuing healthcare funding.

@LadyGardenersQuestionTime

Your mum’s house will pay for a good four years of care. After that, if it becomes apparent that £10k has gone missing from her assets it’s possible that would be chased up but in all honesty I think it’s unlikely. - £10k is hardly worth them spending the legal money on chasing. And, in the kindest way, given your mum’s frailty do you think she will need care for longer than 4+ years?

Thank you - she is very frail - I understand what you are saying

Ah ok I see, I am glad you have stopped that now. I don't mean to be harsh, but that would definitely have not looked favourably on your sister. Regardless of whether mum used to give her cash, wanting her to have it etc, when mum's circumstances changed your sister should have really stopped taking it.
I don't think any of us can say for definite whether it will flag up she has spent £10k, but it's not the Local Authority who will be interested as such. It's a few years since I initiated this process and I'm trying to remember what I had to do, and which Agency wanted what information. IIRC the LA came and did the finance assessment. I don't remember having to provide lots of information to the LA, just the basics. All they're interested in, is are the assets over the threshold and if so how will your mum be paying for her care. Easily identifiable with a house worth £350k in your case. You can tell them how much in savings (if any)
The much more detailed info was given to the COP, when filling in the forms for Deputyship. I had to provide bank statements etc. So if when you fill in the form, at that date there is £10k of savings, this is what they would use as their base figure. You don't necessarily need to state there should be an additional £10k. Any reduction in this amount would have to be accounted for in your annual report.

Thank you all - very informative

I think I have decided to do the deputyship forms myself and sell mums house (I know I have to)

The house sale will fund a good four years of care

I have decided to take the consequences regarding the missing £10k on behalf of my sisters well-being and my nieces and nephews and deal with it as and when I am chased for the money (hopefully not until the house sale money runs out)

After a very stressful 4 years, the pandemic making things unbearable - my family need to move on and find a way forward.

I hope I have not misunderstood anything!

@Hiphopboppertybop99

Ah ok I see, I am glad you have stopped that now. I don't mean to be harsh, but that would definitely have not looked favourably on your sister. Regardless of whether mum used to give her cash, wanting her to have it etc, when mum's circumstances changed your sister should have really stopped taking it. I don't think any of us can say for definite whether it will flag up she has spent £10k, but it's not the Local Authority who will be interested as such. It's a few years since I initiated this process and I'm trying to remember what I had to do, and which Agency wanted what information. IIRC the LA came and did the finance assessment. I don't remember having to provide lots of information to the LA, just the basics. All they're interested in, is are the assets over the threshold and if so how will your mum be paying for her care. Easily identifiable with a house worth £350k in your case. You can tell them how much in savings (if any) The much more detailed info was given to the COP, when filling in the forms for Deputyship. I had to provide bank statements etc. So if when you fill in the form, at that date there is £10k of savings, this is what they would use as their base figure. You don't necessarily need to state there should be an additional £10k. Any reduction in this amount would have to be accounted for in your annual report.

Thank you again - yes she should have you're right - silly indeed but not devious on her part or my mums

What will happen to my sister and the fact that £10k is gone/spent - is the thing that is worrying the family

I thought the police would be involved but it doesn't look likely I think now

I think you are right the LA will not care until the house money runs out which might never happen and the CoP will not care unless you or someone else reports your sister for financial abuse. Even if they did do that it is very unlikely that anyone could make her pay the money back.
In this situation in which your mum would not have objected and no-one has really lost out as she will still be self funding the care fees anyhow I have to say I would let sleeping dogs lie.
In my professional capacity I'd be obliged not to but in a personal capacity if I were you I would make sure it never happens again (once you have the deputyship it will be you that's liable and you would get in trouble with the CoP for abuse of the power) and leave it at that.