Disputes over care fees double in last 5 years: protect your assets NOW

Rise in challenges to Wills

The number of disputes over who should pay for care have doubled over the past five years, according to figures from the Parliamentary and Health Service Ombudsman published in The Sunday Times. From April 1st 2011 through to March 31st 2012, the Ombudsman received 319 complaints – but this figure increased to 600 in the year running up to March 31st 2016. From April 1st, the Service has already received 391 complaints, suggesting that the total number of complaints for 2016/2017 could be between 700 and 800.

The figures highlight the reluctance of the NHS to pay for care through their Continuing Healthcare Scheme (CHC) and emphasise the importance of protecting your assets from future care fees now.

The Continuing Healthcare Scheme – a little known source of funding

Few people know about the Continuing Healthcare Scheme which we covered in our article last week (see: ‘Avoiding care fees: NHS Continuing Healthcare/NHS Continuing Care’). Often when a person needs care, the first test to be conducted is a means test to see if they can afford to pay for it themselves. If the person has assets of £23,250 (including their home), they will have to pay for their care in full. Once the person’s assets go below the £23,250 threshold, they will be expected to pay a contribution to their care, until their assets reach the £14,250 limit. At this point, the NHS will take over the payments. According to the analyst LaingBuisson, average nursing home is £756 a week – and a person’s assets can therefore deplete down to the £14,250 limit very quickly, leaving little or nothing to pass on to the children or grandchildren.

What actually should happen is that the NHS should first assess whether the person is eligible for funding under the Continuing Healthcare Scheme. Our article explains more on who is likely to qualify. Although the terms of the scheme are very strict and many people will not be eligible, it is thought that there are plenty of people who would be entitled to the funding who do not apply.

If a person qualifies for funding, the NHS will pay for the full cost of care, regardless of the person’s wealth or assets.  The assessment process is complex and often misunderstood – and there is a backlog of people who are waiting for decisions. In some cases, a decision is not made until after the person who required care passed away.

What you can do

Unfortunately you can’t simply give your property away or place it in trust in the hope to avoid care fees. The NHS will generally regard this as deliberate deprivation (see our article What happens if I give away my assets?’) You should be very wary of companies who try to persuade you to go down this route in exchange for thousands of pounds in fees. Please do speak to us if you would like further advice on this point.

What you can do is first ensure that you and your partner own your home (and any other properties) as tenants in common – and then create a trust in your Will that leaves the property to your partner for life, then to your children. Your partner gets full use of the property (and of anything else you place in the trust) during their lifetime but should they need care, the Local Authority cannot take any of the trust property into account when conducting a means test.

With so much uncertainty surrounding the availability of funding under the Continuing Healthcare scheme and the rules of the scheme being so strict, it makes sense to protect your property from future care fees now while you can. Speak to our team about making a Will or amending your existing Will – even if it was made with another firm of solicitors.

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