Can our son live in the house?

[poostinkywink]

Hello, my husband and I have just had a lightbulb moment but are wondering if we’ve missed something. I’ll keep it a brief as possible.

DH’s aunt has just moved from her house to a care home. My DH and his brother have LPAs for their aunt. Aunt’s care is paid by savings. The house is a mess but we are currently clearing it with the view that in 3 years or so, when the savings run out, the house will be sold to continue to pay for her care. My DH and his brother are also the sole heirs.

Our son needs somewhere to stay when in uni later this year. Our Aunt’s house would be perfect. But we are tying ourselves up in knots working out whether legally he could live there temporarily. We would obviously ask our Aunt first but know she would say yes. It would also take the worry of the house standing empty. But could he live there rent free on our Aunt’s request? DHs brother is also happy for this to happen. It seems like such a win win for everyone but these things are never simple and so I thought I’d ask here.

Thank you for reading.

Oh, and because I paid cash to my mum (who minded DGA’s affairs) we didn’t declare it as income. We were able to allow her bank account to mostly sit quietly.

PPs have pointed out some of the potential issues with this.

Firstly, does your DH's aunt have capacity to understand the pros and cons of the various options and make an informed decision?
If so, it's up to DH and his brother to explain the options to her and execute her decision.
If not, as PPs have said, they need to make a decision that's in her best interests - ignoring the fact that it would benefit anyone else.

Your son would arguably be carrying out the role of a property guardian (if he is responsible for looking after it while it's otherwise unoccupied) and if he has exclusive possession, this makes him an assured shorthold tenant with all the associated rights - meaning your aunt would have all the associated responsibilities (which your DH and BIL would have to manage on her behalf).
https://www.gov.uk/government/publications/property-guardians-fact-sheet/property-guardians-a-fact-sheet-for-current-and-potential-property-guardians

You haven't said how long you expect her savings to last; assume the care home fees are high and they will run out eventually. So your aunt will need to sell the property - and I agree with PPs, why not sell it now and invest the money to make it easier to access when needed? If the property is not sold then you would need to maximise the asset ie by charging commercial rent to cover the cost of maintenance/repairs and to provide an income towards care home fees.

My cousin and wife moved into our grandparents house when they went into care and the house couldn’t be sold while a family member was living there. It would have broken my grandparents to know their house was sold.

my cousin spent money bringing the house up to date. It still had the original coal fire place as it was a council house they bought.

I don’t care if people think they should have paid for care as my grandad fought in WW2 and worked hard until he got miners lung from being underground. They were told NHS is from cradle to grave and spent nothing on themselves ever. They were separated in the care home into male and female despite hardly ever spending a night apart in over 60 years.

nowadays then yes you need to make plans so I will be releasing equity and going on a cruise when I’m old 😜

https://www.ageuk.org.uk/information-advice/care/paying-for-care/paying-for-a-care-home/deprivation-of-assets/

We did it with DHDM but DD paid rent into elderly relatives account, any income just helped care home fees and lessened the need to sell the house. The house was willed to DH and eventually we sold it to DD.

Wow - thank you all so much for these views.
re. Capacity. My husband has had to take over the running of finances etc as she is no longer able to manage that. She still understands things and was able to talk about the upcoming F1 Grand Prix recently, and in our view would absolutely be able to give consent. But as some have said here, we would feel better having an assessment made so that we are happy that her ability to consent has been professionally recognised and documented. We feel very sure she would like our son to be using the house (it was previously his grandparents).

The house is not in a state to be sold as yet. Full to bursting and we are moving through as fast as we can. No rush to sell as there are sufficient savings, but these will run out in a couple of years and then the property will then need to be sold. DH has enough work dealing with the finances as it is without throwing a house sale into the mix so we will delay until that time comes. It is in a desirable area so will sell quickly.

It’s a 3 bedroomed house and we have thought about allowing a friend of my son’s to stay there too but with rent to be paid. We couldn’t in all conscience allow another person to stay there rent free. To be honest, this part we haven’t thought through/how it would work. But we would know the person very well which is why we would feel comfortable with it.

I really would like it to work - we know our Aunt would love this too, but I worry that it is too complicated. It’s been a very stressful time and the ongoing managing of her affairs is extremely time consuming (and then juggling work and our own day to day stuff). I was hoping there would be a straightforward answer to this, but in reality I knew it would not be and I’m not prepared to risk any comeback. It’s such a shame because we are family and our Aunt would love this to happen, but the legal implications given her age now might just be too much to get this going.
Thank you everyone who has posted - it is very much appreciated ☺️

Does aunt (the donor) have capacity?

Sorry, I couldn't see ANY replies there!

I see the aunt doesn't have capacity or that you're not super comfortable with her levels.

Our advice would be for your aunt to undertake a formal assessment as to capacity and then take your solicitor with you to take her formal instructions re: the house.

The LPA can invoked (I presume) when she has and has not got capacity. When she loses capacity you MUST use the Power for her benefit, this means charging market rent.

I can't really review this reply, I hope it makes sense (I don't like new Mumsnet).

ps am a solicitor.

No worries! Thank you - I can see this. Good advice re taking the solicitor. However, I think the more I read of the replies the more I feel that it is waaaay more complicated that we imagined and we are probably better off concentrating on working through the house and getting it in a position to sell. It’s honestly a full time job right now. I do believe she has capacity to make this decision but it’s just too much for us I think and feels like an added complication.

With a POA you have to act in her best interests and it could be argued that your son moving in is more in his interest.
I am not judging, I can see why its a sensible idea but you need to be very careful with a POA that you are SEEN to be acting appropriately not just doing it

It does sounds as if selling it might be the best option.

If you did want your son and his friend to live there, my suggestion would be to seek advice about setting up property guardian agreements which would apply to each of them. They should both pay rent but at a reduced rate.

Tbh selling it would probably be simpler!

They have been dead a long while now so not applicable. They were the generation promised the world by paying national insurance and they would be taken care of.

if I go on a cruise when I can finally retire then what are they gonna do? Sue me? I have no money!

if you rent then you get it all for free anyway.