MIL in care home - change in circumstance...

[CactusMactus]

MIL is currently in a state funded care home. She has recently inherited money from a relative that has passed away.
DP and his brother want to move the inheritance out of MIL's account. They have power of attorney and financial control.
She does not need this money and wanted to leave something to DP, BIL and grandkids - so they would just be taking it before she dies (sorry to be blunt, but trying to be factual).
Can they do this?

Yes it would be fraud. Even with an activated POA there are rules as to what you can use her money for and that includes NO GIFTS. You have to keep a record of all monies spent. I have had to do this. Your husband may not get caught the same as if he steals elsewhere he may not get caught but it is just as serious.

Why would you need a solicitor, the money gets paid into her bank and the care home manager and social services will sort out her future funding. He can involve a solicitor if he wants but they will tell him no he cannot use the money for himself, its for her and her carehome now unless she's fully funded for chc needs. She can update her will but doubt she can gift money at the moment ent unless it's within the amounts allowed.

My MIL was self funding and got higher rate Attendance Allowance.
I think the tax free gifting is only allowed out of excess income. So if your MIL was in receipt of AA, state pension and private pension that was more per month than her care home fees she might be allowed to give that away.
I'd want advice on the inheritance as I suspect any disposal of that would be investigated for deprivation of assets if you were trying to get care home fees paid by the Council.
Any alleged abuse of POA is taken very seriously by the Office of the Public Guardian. You really can't spend money on anyone other than the donor.
I can imagine it's tough to see a life altering inheritance being eaten up by care home fees but that is the reality of the rules. We were lucky that MIL had a good pension and widows pension but she wasn't eligible for funding and was in a home for a couple of years. It was a lot of money but equally it was bed, board and 24 hour care which we couldn't provide ourselves.

I suppose they could get away with it as long as the local authority doesn’t do regular financial assessments.

Care Homes want direct debits. As attorney you just authorize the DD via the Donor's bank account.

But the money for her care isn’t currently coming from the MIL’s account, and they plan for this to continue.

You cannot give away any money if it has already been assessed that you have care needs that require residential care. Where I am, the limit is if you are over £23,250 in savings or capital (bonds etc) you pay full cost for your care until you reach the limit again. From then your care costs are all your income except around £30 per week which is your personal allowance.
If you DH moved the money his LPA status can be revoked by the OPG too as he's not acting in his mothers best interest but in his own for financial gain.

A cautionary tale - I have a relative of a relative by marriage who had PoA for her mother and had her living in her home for a long time. She used her mother's money to improve her own home under the guise of it being to make her mother's life better, then claimed for social care funding (not sure on the right term here) to pay for her care. Long story short, she got found out, she got a criminal conviction. Although she did escape a prison sentence, she had a tag, she lost friends and family, had to sell her home, destroyed her life through greed.

Taking this inheritance would be an even worse step as there is not even any indirect benefit to the MIL here.

When my H had PoA for his gran and later legal guardianship for his grandad, he had to produce all receipts for everything he spent of their money. It had to be in keeping with their lifestyle, so e.g. he could not have bought them designer brands, as they were usually Primark type shoppers. Gifts had to be in keeping also, e.g. £10 in a card type level.

Obviously someone can't use POA to just help themselves to money.

@olderbutwiser if she has capacity she gets the final say in what happens regardless of POA. If she her wishes aren't adhered to then it will be a safeguarding concern and the POA will be reported to the OPG. She can also ultimately withdraw the POA if they use her money without her consent.

@westisbest1982

Obviously they are wrong. I was just explaining that the attorney can invest the money and draw down on it. That's what should happen. It's a great shame the money hasn't bypassed her.

That. My mum had capacity but was so physically disabled that she needed my brother and me to carry out transactions and pay her bills. Because she had capacity we could only use our authority with her permission. So she told us what she needed doing, or we mentioned something that needed paying and she agreed to it.

We absolutely did not move money without her permission, and as siblings were were absolutely transparent with each other whenever we made a transaction, to ensure that all was above board.

What your DH is suggesting is foolish in the extreme. If their mother agrees to it she will also find herself in trouble. If she doesn't, then they are breaking the law.

Every year most local authorities will do a finance check and it will be picked up then. I would get in touch with Councils finance team not a solicitor.

This in a nutshell! How grabby!

HNRTFT but if she has capacity then she makes decisions about her money .
Morally this idea is wrong and probably illegal.

Your DP and his brother are bang out of order. Your mother can afford to pay for her care and deprivation of assets out of her inheritance and the inheritance should be declared to the LA which are funding it at the moment.

To do otherwise for their own benefit would a serious abuse of power of attorney, which I believe may be a criminal matter.

This.

Ooh no they definitely can not do that.

Absolutely this, my late mother had 6 weeks reablement in a council run one, we thought it was ok but it really wasn't compared to the one we moved her to (a charity run one) the food in particular was where the budget was cut to the bone, compared to the delicious home cooked everything at the nursing home where she thrived. Unbelievable difference between the two homes.

Your DP and his brother should be looking at spending the money making their mothers life better

OP has stated they do not wish to move MIL as she is happy. Indeed, it would be unwise, as £100k won’t last forever and she might not get back into the current home if the money runs out.

Irrelevant as far as I’m concerned. As a taxpayer, I resent paying for someone’s care when they should be paying for it themselves. But if the brothers go ahead, the plan will all unravel anyway, when the local authority do their yearly checks.

Sorry - in no way was I suggesting that MIL didn’t pay for the care. I did state this earlier.

Many homes are a mixture of self pay and council pay, and MIL would ideally stay where she is and self pay for as long as the £100k lasted.

My MIL was in a lovely council run home, but was self funding. Council run doesn't necessarily mean council paid.

Incidentally it was a much much nicer and better place than my mum's BUPA one.

It's a great shame the money hasn't bypassed her

Well it's a great shame for her children and grandchildren, obviously. But It's not a great shame for the rest of us!