£ intended for sons but not in their name

[BringBackCatsEyes]

FIL has an account set up with a name e.g. For Charlie.

It is in FIL's name, but clearly intended for Charlie.
£10 a month has been put in this account for years and has a few thousand.

I have POA for FIL. Has has gone through all his assets on care and is now being LA funded.

Will the council regard this account as his asset or allow it to be left to Charlie?

The context - there are 3 such accounts. 2 for my sons and 1 for SILs son - the three grandchildren.
SIL (also with POA) wants to give the £ to the boys now.
I am wary - would be be seen as moving assets if FIL dies in next few years?

Yes, we could ask a lawyer, but that'll probably cost more than the value of the accounts.

If my sons get a bit of £ from their grandad then great, but I don't want to risk doing something wrong.

When the council did the financial assessment, for him to be council funded, how did they view the accounts? Do they know about them? I don't think naming an account "for Charlie" will have any validity at all because it would be too easy for people to retain money over the allowance by doing this. I think you are right and your SIL is wrong. Now that your Dad is in care sadly I think its too late for him to give away money or for you as POA to give it away on his behalf because unless his total assets are already below the allowed limit, it will count as deliberate deprivation. Age Concern do some very helpful factsheets on their website. Sorry its not better news. Oh and to tell your SIL, the outcome of deliberate deprivation is that your Dad's assets will be assessed as though he still had what was given away so this means that even though factually he may not be able to afford his care payments, the council can and will decline to supplement what he can afford.

It's too late to move the assets now, it would count as deprivation of assets, in the same way you can't say "but I had planned on my kids inheriting my house". You can plan what you like but that doesn't mean it'll work that way, so you are right not to listen to your sister.

If your aim/wish is to maximise money to the kids, your best bet is to identify what would be permitted as periodic/expected gifts and max them out. Depending on what other assets your dad has, it might be that you don't make it through all of it before it becomes a problem and gets spent elsewhere, but that's the only route that won't have repercussions. Arguably you might be able to speed it up by also gifting to the parents of the intended GC for them to then give to them, but that's probably a bit of a grey area, morally if not legally.

Edit to add, the limits are for an inheritance tax purpose, it may be that it doesn't apply to care and still counts as deprivation. Also keep in mind that your role as POA is to act in his best interests, not necessarily in line with his original wishes. Arguably it could land you in hot water as it's clearly not in his interests to deprive him of money that he needs to fund care.

My SIL has been dealing with the council, and it's been really hard.
I don't know if the council know about the accounts.

I have told her I am not comfortable moving £ which may be regarded as his assets.
If she goes ahead and sends £ to my boys I will ask them to transfer it to me and I will set it aside.

She is very emotional and putting pressure on me, but I am standing firm. She can do as she wishes, but I want nothing to do with it.

It is very sad that the little FIL has left that he wanted his grandsons to have may be used to pay for his care. If only he'd set up accounts in their names.

Now she wants me to give her the POA bank card that is in my name.
That's illegal.
Eugh...I hate this.

If it’s his acc then it’s his money. He should’ve set them up properly and not done the halfway house of saying they’re for someone else but not putting in their actual name. It’s unfortunate, but the rule is there to stop people putting loads of cash they have access to under ‘For Charlie’ but using it themselves.

Tell SIL she is playing with fire and you’re not getting into legal trouble over a few thousand.

His intentions were good, but misguided. His oldest grandson is 27 so he wasn't thinking he'd end up in a care home at that time.

I have told SIL I am not giving her my card, it's illegal and she shouldn't ask me or make me feel bad.

It depends a little how much there is. The LA will ignore any savings under 14.25k for funding purposes. So if the total in these accounts (+ any other money) is under that, then the LA don't really care what you do with it. It's not deprivation of assets because it would never ve considered towards paying for his care anyway.

Thanks for supporting me in saying I'm doing the right thing. I don't have a partner or many people I can talk to this about and she's making me feel very, very anxious.

I’d be hugely surprised if the Council doesn’t know about these accounts. They ask for bank statements when carrying out assessments and these would disclose money being paid regularly into other accounts.

That's what I'm uncertain about.
He's already had his assessment and been awarded the funding.
I wasn't any part of that so don't know if they rely on all accounts being openly shared or whether they have authority to view his accounts themselves.

Could it be that my SIL has not disclosed these accounts?

I am not a lawyer, but I think you may be OK on this because of a point about motivation.

The relevant statutory instrument says:

"The adult is to be treated as possessing capital of which the adult has deprived themselves for the purpose of decreasing the amount that they may be liable to pay towards the cost of meeting their needs for care and support…"

In the statutory guidance councils are told they must consider:

(a) whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?
(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

And a key court case found (Yule v South Lanarkshire Council [2000])

"Before the council can reach such a view, it must have material before it from which it can reasonably be inferred that the deprivation of capital took place deliberately and with the purpose of the nature specified".

So if your motivation in making the transfer is comply with the man's wishes and put his affairs in order now you are POA, that is not a motivation that would invite a finding of deprivation. (A bit more convolutedly, you might be unclear about whether the gift had already happened legally speaking, in which case FIL would be holding the money in trust for Charlie).

If the purpose (or a significant motivation for the timing of) is clearly about avoiding care fees then yes, it would apply.

Could you transfer the funds and simply ask Charlie to hold them aside in case of any later finding?

The council must have material from which it is reasonable to infer motivation. If you have other evidence on your motivation, they must engage with it. The law is what governs this, not the council's decision as the final authority.

That all sounds good, but I envisage the council vs us in a length legal case. We’d have to get legal advice and we all know how much that costs.
SIL can do as she wishes. If the £ comes to my boys down the line then it will be nice for them.

Every single time she asks simply tell her ‘No, that is illegal, stop asking me to break the law, this is not protecting FIL.’

Under a power of attorney you have to act in the best interest of the person you are acting for. I’m fairly certain that one of the rules of being a POA is that you can’t give money away.

Ah yes, I think this is right also. I should stop trying to be an amateur lawyer. (I'm pretty certain my deprivation of assets point above is correct, from some experience, but the POA point passed me by).

At risk of doing another amateur-lawyer fail, there is a route to go to the Court of Protection to get them to bless a gift, but that has costs and I have no idea what the outcome might be.

Thank you.
I have archived her WhatsApp chat so it’s hidden a bit.

I agree with the OP. The FIL is being funded by the state. You surely cannot expect accounts belonging to him but marked for 'others' to not be included.

My late Father used half the value of his overall estate to pay for his care in later life. Why do others think they can wriggle out of this.

It is not a case of wriggling out, the £ is clearly intended for the boys - set up 27, 17 and 15 years ago when FIL was in good health.
We had no idea they were not set up in their names as we did not have POA at that time.
Arguably the solicitor that drew up his Will should have brought this to his attention.
I don't think anyone would claim he was trying to wriggle out of paying for his care. He has used up the value of his home and most of his other assets. We are talking about a few thousand for each grandson.
I would challenge anyone to morally claim the State have a right to this money.

Then just try to get all the other assets used first until below the threshold then you won’t have a problem.

I have been through the financial assessment for care on behalf of my dm, last year. The Council only accesses what you send to them - so I had to send a photocopied wad of papers that comprised bills, pension statements, all bank and building society statements (for the previous 3 months, from memory), benefits statements, and receipts / invoices for things like disability equipment, gardening and cleaning services. It was a massive headache getting all of that together. They would be able to see the money going out of the accounts presumably (on the bank statements issued), and the payment ref would presumably name the children - but they are still his savings accounts, if they are actually in his name.

If it were me, I would be asking SIL whether she included the accounts marked ‘for grandchildren’ in the financial assessment. If not, that is essentially fraud - if it now means that the council is paying for all, or a greater amount, of your relative’s care. Maybe you should take advice from the financial assessors at the council?

I know you feel that morally those accounts belong to the grandchildren, but they don’t actually belong to the grandchildren - he could have been transferring money into their JISA’s, or accounts solely in their name, but he didn’t. It sounded like he wanted to hedge his bets (so he could have it if he needed it) - or maybe did not realise what all the implications were.

I am not a lawyer. I wouldn’t imagine that ‘intention’ would hold much weight though? as surely everyone would just use this as an excuse to not pay for care, or to try and avoid inheritance tax etc etc. Hopefully there will be a lawyer along soon who can advise.

I am not a lawyer either but sorry i think you are wrong. The assets weren't disposed of before the person started to receive care. The person concerned and his POA's still had control of and access to those funds. I could put most of my cash assets into an account and call the account "for the cats' home" now at most, it would demonstrate that when I named the account I was planning to give money to a cats' home.....equally it could have been a cunning plan to retain more of my assets. I can change the account name at any time and also I can spend money from that account or move it to any other account that I (or anyone else for that matter) hold. Basically the asset hasn't been disposed of, so your quote does not apply.

As POA I would do as FIL intends. Set aside the children's funds in accounts in their names. Secure the savings for them in the correct way. You know better that FIL how to do that. As POA you should be acting in his best interests and that was his clear intention. I would also keep putting the small amount aside for the younger two.

No I can see that it was, sadly, a poor decision by your father and not an attempt to wriggle out of anything. He may not even have raised it with the solicitor who made his will. He would have had no reason to, and, honestly I don't think that the solicitor would have imagined that he needed to ask what he had named his bank accounts. Mine certainly didn't when I made my will. If he was in good health, the question of needing care may not have arisen and also of course, a solicitor writing a will is only concerned with, and employed for, the purpose of writing a will and not giving advice about finance while the person is alive. My experience in this is that I worked for community elderly care in the NHS. I often had to explain the process in general to people who were in hospital and not going home, or to explain it to their relatives, so I had to get my facts right and be able to explain it clearly.

Please please don't go down the moral right rabbithole. It will only stress you out for no reason.

My best advice to you about dealing with your Sil, if she won't listen to reason, is to (yes I know its horrible) remove yourself as a POA, assuming that she will refuse to remove herself. DO NOT accept any money from you father's "for xxx" accounts not even to set aside. its very possible that accepting the money will trigger the deliberate deprivation process and that benefits nobody...oh and don't allow your sons to do so either. I am so sorry you are caught up in this. Honestly go read the Age Concern stuff and show it to your SIL.

@BringBackCatsEyes DO NOT DO THIS
@user1492757084 stop giving terrible advice.

My advice is not legal at all, it's true. It is a common sense opinion. I thought POA means to act on another's behalf. If FIL could make his own decisions, I think he would secure the money for his g.children. Why else has he set aside the savings and why else had he told Op of his intentions?