To spend some of our DP 's money when they are self funding in care home.

[PicnmixTwixnBics]

Both my DM and DF have recently moved into care homes due to ill health. They are self funding. In the last few years when they were still in their own home they gave my 2 DNs £1000. each when they passed their driving tests. Would it be seen as 'diverting assets'if they were to give a similar sum to my DD when she passes her test. My DS and I have LPA, and are managing their finances.

Must take a note of this - give away money now while the council and inheritance tax people can't interfere with what I do. I am sure those in the know have been doing this for ages. An aunt got free care which came as a surprise as had apparently been quite wealthy (was having an accountant son and a solicitor daughter of any relevance)

@ALargeGinPlease OPT and ASD do not interpret the legislation as being woolly here. Birthday and Xmas gifts & one offs are fine if reasonable sums, not excessive ones. But think carefully about any gifts over £50 , as depending on number of factors could potentially be seen dodgy - as the Donee's financial and care support needs are different now. When at home and independent, and with capacity, they did not need their money before for essential care that keeps them safe and alive. They do now. It is a safeguarding matter. Your sister is right to be conservative in her approach.

There is no time limit as to how far back a Local Authority can check for deprivation of assets.
The clock begins to tick as soon as the idea for future care rears it's head.

What @Lyralalala said

Except you also have to think about maintaining finances for future supporttheir

Although if as Lyra suggested for e.g. Person has £90,000 a £200 gift relatively does not seem much, in reality they only have £66, 750 which is 1 - 3 years (depending on income) of care fees available before they need to approach ASD for care. So one gift of £200 might be fall under 'reasonable' if small family, but if for e.g. 5 or 10 gifts in that year of £200s (£1000-2000!) would not be seen as reasonable and be a safeguarding concern for financial abuse, with OPG safeguarding team leading the investigation and they can look back years

Let's hope that accountant son and solicitor daughter enjoyed spending their mother's money, whilst she got 'free' care paid for by working tax payers. I personally, wouldn't choose to leave my elderly parent to the mercy of social services in their most vulnerable years.

lots of questions being mixed up here!

it is not theft if you honestly believe this is what they would want to do with their own money!

I would look at is this way but there is no hard and fast rule
what is their life expectancy?
and how many years care fees do they have?

If they do not match up then you are depriving assets!

Let me just correct a point though in Lyra's

Did the gift reflect what the person says they want to leave to people in a will

That is still deprivation of assetts. The Person is not dead, inheritance intentions do not apply as the Person is in residential care and in need of those funds for their care & support needs.

It's different if someone had millions.... But then they'd likely have had a accountant set up trusts etc for inheritance purposes

It wasn't my words. That's from the public guardian website.

@ruthieness
Yes it is theft in situation I explained. This is my field.

newmumalltheusers my mother has full capacity and still wishes to gift the money. My DS is the one who thinks we should give DD the money now. I am the one who is hesitant. They have just sold their house and have assets totalling over £300,000 .

A person with capacity cannot deprive themselves of assets to avoid care fees.
Ergo the Deputy or Attorney of a person without capacity cannot do the same.
I don't think it's under the remit of the OPG to decide on deprivation, AFAIK that's under the employ of Local Authorities who may have to pick up the bill.

Thank you @OffToBedhampton , I appreciate you replying to me.
You say Birthday and Xmas gifts & one offs are fine if reasonable sums, not excessive ones, my comment about it being 'woolly' depends on someone's interpretation of'reasonable'. So is e.g. £150 or £200 birthday/Christmas gift reasonable to 2 offspring, if that's what she did before?
She would be very upset if she thought we were getting less than we had before.
Also, as pp mention, as the money dwindles, should we get less, I.e. a percentage of what's left?
I think it's a minefield. I wish there were very clear guidelines with actual amounts or percentage laid out, so we could just follow them, rather than guess what is considered 'reasonable'.

With that information, it would seem reasonable to me that your DD receives £1000 after her driving test but going forward, I would rein in gifts to a reasonable level, depending on, as pp stated... life expectancy and assets available to cover care costs for both people.

@chandylier no one has said they can't spend their money if self funding. What some PPs & I have clarified is that their situation is different now and they cannot Deprive themselves of assetts by gifting large sums, nor can their LPA deprive them of assets on their behalf, when in or considering residential care. It is covered by legislation and regulations.

Large gifts or a series of numerous moderate gifts that add up to large sum gifting, are a deprivation of assets if it means they have to approach ASD for public funding assistance earlier.

I would say that £1000 out of £300,000 would seem like a reasonable gift, especially if a precedent has been set, then it is not deliberate deprivation of assets.

However, should it be looked into in a few years time by OPG, they could make your DD pay it back again, that's the worst that could happen.

(I had to look into this with the OPG for a friend who was POA for her mum who had a similar situation and wanted to treat youngest GC the same as she had the others previously).

@ALargeGinPlease
It depends on the assets they have as their money depletes they wouldn't be able to afford to gift as much. So if self funding, a gift amount totalling for w.g £300 (2 people x £150) that year if mum did that before and if they have significant SF assets still, wouldn't raise a concern. But totalling up numerous significant sum of gifts to others over a year or few years if it depleted their money quicker would, as they need those funds for their care support.

Most care homes will have a mix of self funders and council funded people and the carers do not know which is which. In fact the fees are increased for the self funders to make up for the shortfall in the amount the local authority pay. Those being cared for at home will get the number of visits as specified by the care plan whereas the self funders are constantly worried about the costs of care and will cut back.

@myhamsteratefreddiestar. - great name!

It could still be dodgy as £300,000 potentially is 2-3 years care home fees (if over £1000 a week each) for two vulnerable adults . And whilst OP is "only talking about one £1000 gift", if it 's together with big sums in gifts for others it could add up together to significant amount and a deprivation of assets that is not in Donee's best interests as an LPA in finances. I don't know figures OP refers to when she said she considered upping gift amounts to themselves as well nor assets her parents have.

It's not a victimless crime either if someone does deprive a person of their assets. It can have big repercussions on the person, where significant sums have been taken even if over multiple withdrawals.

OfftoBedhampton I agree, I certainly wouldn't advise any further gifts to family beyond this one. If it were me, or I was advising a client, I would say make this one gift to treat all GC the same, but OP should be very aware that if it was disputed in years to come, then it would have to be paid back, and deal with it if and when it happens.

and then not make any further gifts other than minor birthday/xmas gifts of nominal amounts.

Ah, @Lyralalala I see. I used the wrong word, I meant "can not be used here" rather than "correct" your post. Apologies.
I think OP that @LadAlive and @myhamsteratefreddiestar made sensible & helpful points

It is worth noting there is a difference between civil liability and criminal liability. just to be pedantic "deprivation of assets" is not in itself a crime....

What happens is that when you can no longer pay the care home fees then you are assessed for care home fees as if you still had that asset available.

So for example once you get down to your last £23,250 then you are not expected to contribute to care home fees - if you have deprived yourself of £1000 then they can require you to get down to your last £22.250 as you are treated as still having the £1000.

Does all this mean that if a person goes into self funded care (Assuming full mental capacity and care due to physical need only) they are unable to spend their own money? That sounds pretty awful, what if they need new clothes, or they want to go out for dinner?

They will be "able" to spend their money but whatever they have spent will be looked at when they start claiming help with the care home fees.

It will be deprivation if "substantial expenditure has been incurred suddenly and is out of character with previous spending".

Age uk have a good fact sheet on this

Well if your mum wants to gift her the money then what’s the problem?

When my dh was deputy for his mum he had control over her money. We got a book about gifting, using her money to give as a gift for Christmas, birthdays etc. As long as you accounted for it and it was something she usually did then that was fine. As it was my dh talked to our adult dcs about it and they decided to not bother. The information should be online under court of protection.