Deprivation of assets? Can I be accused too?

[Mirandawrongs]

I have POA over my mother, jointly with my older sister.

I deal with all medical stuff and sister looks after the money.

mum is in a nursing home.
Self funding as over limit but will be under limit by November.

just found out my sister has given large sums of mums money to her adult children.
mum says it’s fine as the home can’t kick her out.

I’m concerned that this will be seen as depriving the assets mum has/had.

am I right to be worried??

I’m not confident it’s what mum wants or even wanted.
she’s never given such large sums of money for anything
when sister got married mum gave her £1000.
that was the biggest amount I’ve ever seen from her.
mum gets very confused and doesn’t understand anything

To try and sum up what has been said:

There are two possible issues, Deprivation of assets and Fraud/ misuse of PoA

Deprivation of assets: you’re allowed to make reasonable gifts, but a large sum of money is likely to be looked on as deliberately depriving yourself of assets to avoid having to contribute to care costs. The LA then proceeds as if you still have the money. So if she “gave” away £50,000, the LA would act as if she still had that money. So when she was down to £23,000 in the bank, and normally the LA would start contributing, the LA would say “No, you still have £73,000”.

in practice, if the money has been spent, I don’t know what would happen, but I wouldn’t like to be in that position.

If there’s Council funded people in the home, it’s likely that the Council wouldn’t want to move her if they agreed to fund her.

Fraud/misuse of PoA. An Attorney can spend money for the person’s benefit, including continuing with gifts they were in the habit of making, and, if the person still has capacity to make the decision, larger gifts. So key is whether your sister had your mother’s agreement, and whether your mother had the capacity to understand this gift and its likely consequences.

I would advise speaking to OPG, and laying down a clear line between your actions as Attorney and your sister’s actions.

Write down all the information you have, so you have a good record for the future. Deprivation of assets won’t become an issue until your Mum’s money has reduced to the level where you need LA help.

You are right to be worried.

I'd focus on first finding out whether it is fraud rather than deprivation of assets. The attorney is supposed to be representing the donor's interests and acting as they would have done. It's down to whether your sister has your mother's agreement to this or whether she's abusing her position.

The local authority has seen it all before, they will base the financial assessment on your mother still having the money that she's given away. I'm assuming that your sister thinks they might not notice and that she's "saving" the money from care fees but it's whether your mum is in on this scheme or not. If you can't resolve this with your sister you have the option of standing down as attorney which means that she gets to deal with any consequences of her decisions by herself. She seems to be happy acting by herself anyway and it mught ease your mind for this to be none of your problem. The other option, if it is fraud rather than hopeful thinking, is to report her to the OPG and have her removed as attorney but then you've got to try to recover the cash she's transferred.

This is disgraceful! If someone had wanted to gift christmas, birthday amd wedding money then they would have done so at the time. Backlog indeed...

People's wills or intestacy law decide where their finances should go once their dead. POA isn't granted so rogue family members can start distributing an estate in advance of death! I gather all the grandchildren happily stuck their hands in the pot though

How much is your sister giving away?

I am sorry but I think it is very likely that the LA will see this as depravation of assets. One of the “tests” they use is “previous habit” I think it’s called. You can continue (within reason) to do what you always did but you cannot suddenly start to give assets away. Age UK has some fantastic leaflets about all of this which you ought like to read through.

This might help but there are others and if you contact them the staff and volunteers are lovely
https://www.ageuk.org.uk/information-advice/care/paying-for-care/paying-for-a-care-home/deprivation-of-assets/

How much are we talking?

And also do you have children? Did they miss out?

Everyone has differing opinions of what “large sums of money” are. £2000 is a huge amount of someone else’s money to give away like your sister has but so is £20,000.
I read on another thread this week that there is a limit allowed annually for gift giving before it is considered deprivation of assets. I think another posted said £6000 but maybe find out if that limit is above or below what had been gifted.

I know that doesn’t answer your question but it affects whether you are dealing with “just” financial abuse of the POA or also deprivation of assets. It would be helpful to know this before you decide how to proceed.

The above poster that said they had used POA to give everyone a chunk of Grandad’s money that they felt they deserved as he was stingy with his Christmas gifts…. That’s is undeniable stealing and one of the ways the investigation to abuse of POA look into cash gifts is to look at the usual amounts and frequency of cash gifts while the person was able to make their own choices about how much to gift to see if it is in line with what he would want.

Previous intent is no defence in deprivation of assets challenges.

As I mentioned in another thread, my mum had a savings account that she specifically intended to provide her granddaughters with help for house deposits. But because it was in her name and not theirs, when she had the massive stroke that meant that she would always need care, even though she was fully compos mentis and able to make her own decisions, she was no longer able to give that money to them.

When her self funding money ran out (including everything in that account) the council had to take over her care costs, and yes, they went through all her finances to check where her money had gone. So I'm very relieved that she and we didn't use that money for its intended purpose, even though my mum was really upset about it

Thank you all.
to clear a few things mum had roughly £100k when she went into care home.

worked it out at the time to self fund until October this year.

sisters son lives in mums house, if I ask her if he is paying rent I get “yeah, of course “
her daughter drives mums car.
she gifted her youngest £10k as a flat deposit from mum.
mum has never been a monetary generous person.
mum told me about the £10k in one of her more lucid moments.

I have children. They’ve received nothing but the usual £20 in a birthday card.

in a way I’m thankful!

@saraclara
thats what I believed was going to happen

On reading your update you are definitely correct to be upset.

I would be annoyed my children had received nothing but this is a relief for you now as it’s going to become an issue for your sister and by extension the children.

@Quitelikeit

i don’t see it as my kids missing out!
I’m not envious of my sister using mums money on her kids.
I’m concerned she’s breaking the law

Could the care home kick her out?
Will send be wheeled to the kerb with her belongings and left?

read some scary stories this morning

Oh wow OP sounds like your sister is pulling a right fast one. Im not 100% on all the ins and outs but it sounds like your mum also owns her home ( if your newphew is assumed to be paying rent), so I think im right in saying that the council could insist on the house being sold to pay for the care home fees. That would be karma for your sister 😉.
I doubt they would kick her to the kerb, but they would be entitled to move her to a different home if the council are paying the fees.

I would speak to the care home asap and check they know she will be switching to council funded and when. Tell them
you are concerned she will be “kicked out” in a jokey way! Hopefully they will reassure you.

I know that some children’s nursery schools (Busy Bees) have a certain amount of spaces for parents who are paying the full cost and a certain amount of spaces for parents that are claiming government funding.
They need to do this to make sure they have enough money to actually remain open.
I imagine nursing homes could be similar system and so I wouldn’t just assume and would speak to the home asap Incase there is a waiting list or however.

Will the house sale be forced if your nephew is living there? This is also something to find out I think.

Well to put it bluntly if your mum dropped dead tomorrow your sister has also deprived you of half your potential inheritance.

obvious your mums needs are more pressing but your sister is not just depriving the state/council of money but potentially you.

id be very fucked off

Doesnt your dsis realise how unfair she’s being not offering the same to your dc. Yes I know you wouldn’t agree, but I’d be really upset about the principle of this too.
Remove yourself from the POA to protect yourself.

I would not remove myself from POA at this point - who else is going to look out for your mum? And if your sister is removed and your mum has declining capacity then it will be very difficult to get another POA. You’re going to have to go through the OPG to report concerns and see what they say. I’m sorry for the impact this is going to have on your relationship with your sister, but to coin a phrase from everyone’s childhood - she started it.

as for the poster up thread with the story about helping themselves to money for a “backlog” of gifts, how disgraceful. It’s pure theft, no different to walking in the fathers house and helping yourself to the contents. I don’t care what the relationship was with the father in the past, if you can’t bring yourself to act with integrity when handling someone else’s finances then recuse yourself from being an Attorney.

I think the council will force a sale of her house, to pay for the next round of care. Unless any of these apply:

If your care home is permanent, it won't be counted if it's still occupied by:

• your partner or former partner, unless they are estranged from you
• your estranged or divorced partner IF they are also a lone parent
• a relative who is aged 60 or over
• a relative who is disabled
• a child of yours aged under 18

https://www.ageuk.org.uk/information-advice/care/paying-for-care/paying-for-a-care-home/do-i-have-to-sell-my-home-to-pay-for-care/

So your nephew is going to be out whether your sister likes it or not. She is going to be in so much trouble when they see how she’s been using your Mum’s money. In all honesty I would report her, your Mum does have capacity anymore and will be the one that suffers as a result.

*doesn’t have capacity - why is there not an edit on here??

Also I’d very much stay on the medical POA, sounds like you are the only one actually looking after your Mum’s best interests.

With regard to the POA are you and your sister responsible for financial decisions jointly, or jointly and severaly, @Mirandawrongs ?

If the latter, then it's likely that only your sister will have to face the repercussions of her actions. If the former, you need legal advice straight away. Try Age Concern. And yes, you are likely to need to report sister to the OPG

What? That's theft.

As others have said it is deprivation of assets.

Mil is in a care home and fil has POA for her. He had to go through a full financial assessment.

We keep receipts for everything he spends so he can justify it. Half of the joint bank account is deemed to be hers. Anything that was given away before we knew she was likely to need care is OK, anything that is spent after you know the person will need care has to be justified. So paying up a funeral plan is fine and having to carry out essential work on the marital home (new boiler) was also fine but giving us or dh's sister money for a new boiler would not be. Christmas, birthday and wedding gifts are fine but there is a limit as to what they can be.