Relative without mental capacity has inherited

[Oldmrswasherwoman]

My elderly relative is in a care home with Alzheimers and Cancer. The care home place is fully funded under NHS continuing health care due to her the terminal cancer and is not means tested. She has no assets, (council house) savings or even a bank account and does not have any mental capacity. Her children do not have power of attorney (never any need as she had no assets)

Her brother has now died leaving a substantial sum of money and a house to her. He had drawn up plans to change his will to her children in light of her loss of capacity but died before signing them so we assume the original will in her favour has to stand.

What are the options here? How can she inherit the money if she has no capacity or bank account? Can the family open an account on her behalf?

Can the family use it for her benefit, (which is only going to be a small amount for clothes/luxuries) or can her children inherit now somehow - it would obviously make a substantial difference to their lives, whereas all her needs are met by the care home.

Or would it go into a trust until she passes away and her children naturally inherit?

Its a bit of a mess and the family are going to need legal advice but an initial indication would be useful if anyone has any advice!

Thank you.

Get legal advice, it may be possible to do a variation to the will, otherwise they will end up paying inheritance tax twice in a short period of time.

Older persons social worker here -
If she lacks capacity in relation to managing her property and finances then it is too late to apply for power of attorney but a family member can apply for deputyship through the court of protection and this would enable them to manage her money, ie the sum of inheritance.
I’m not sure about the legalities in terms of her children inheriting rather than her but I did recently have a client who lacked capacity around finances/property and inherited a large sum.

I suspect avoidance of IHT is not grounds to vary a will, though I’m not a probate lawyer. We looked at this when my gran, who was in means-tested residential care, inherited, and it was considered deliberate deprivation of assets.

I think Mooey89 is right and someone needs to apply for deputyship. I’d do it ASAP as the Court of Protection is super slow at present.

Contact a solicitor who deals with Deputy applications for advice. There's no delicate way of saying this but it may take so long to obtain the Deputyship (currently 9-12 months) that it is unnecessary. As her care fees are NHS, then funding her care from the inheritance is not an issue.

As Treater says, that Deprivation of Assets issue is the key issue here. Sadly your relative’s care is expensive and the amounts they have inherited will be taken into account towards meeting those costs.
Sympathies for your loss.

Apologies OP I missed the “NHS continuing healthcare“ you did tell us!

Deputyship is necessary here as you will be unable to do a deed of variation re the will as it requires consent. You don't necessarily need a solicitor as it is relatively straightforward providing you are reasonably pragmatic and methodical. It may be a good idea to discuss the situation with the trustees (executors ) and delay the distribution from the will until the deputyship has come through.

Thank you all for your comments. Sounds like a variation to the will might be possible if we had the Deputyship, just the length of time those applications are taking might make it a moot point?
Maybe its easiest for everything to just be put on hold until they naturally inherit? We feel so grasping as we are obviously devastated at the family loss, but being practical its the difference between one of her children being able to retire now from an exhausting general public facing role (and the associated covid risk) instead of in 3 years time. If she had capacity she'd ensure this could happen, as she doesn't its in limbo.
Will chat to a solicitor. Thanks again all.

You are not going to be able to vary the will as she will be worse off and therefore would need to agree to it, which she will be unable to do.

As she cannot grant power of attorney now then somebody needs to get guardianship, /deputyship but this will not give them the power to distribute her assets amongst other family members. The appointed person needs to act in her financial interests. Of course they might argue that it is what she would have wanted, but that is not their place to judge, giving away one’s money is never in one’s own financial interest.

I think you will find this needs to remain in her name until she passes at which point her children will inherit.

Yes agree with Florencex, apply for deputyship so you can deal with her finances, deed of variation not possible. You don't need a solicitor for deputyship, you can do this without a solicitor but there are delays in the system, hence my suggestion of delaying distribution from the will until its through.