Community and residential care

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Latest Private Client News

UT rules on construction of closure notices (Daarasp LLP and Betex LLP)

The following Private Client news provides comprehensive and up to date legal information on UT rules on construction of closure notices (Daarasp LLP and Betex LLP)

Government response to Law Commission report ‘Technical Issues in Charity Law’

The following Private Client news provides comprehensive and up to date legal information on Government response to Law Commission report ‘Technical Issues in Charity Law’

Appointment of administrator pending suit following difficulties financing former family home (Ugolor v Ugolor)

The following Private Client news provides comprehensive and up to date legal information on Appointment of administrator pending suit following difficulties financing former family home (Ugolor v Ugolor)

Bankruptcy annulment and divorce (Lin v Gudmundsson (a bankrupt) and others)

The following Private Client news provides comprehensive and up to date legal information on Bankruptcy annulment and divorce (Lin v Gudmundsson (a bankrupt) and others)

Featured Private Client content

Notaries and notarisation—notarisation

The principles of the notarial act are that it is:•an act of the notary and not of the parties named in the document•a record of a fact, event or...

Creation of trusts—blind trusts

What is a blind trust?A blind trust is a trust that is aimed at preventing conflicts of interest arising. Usually, the settlor and beneficiary of the...

Lifetime gifts

A lifetime gift is a gratuitous transfer of ownership of any property between living persons and not made in expectation of death. In contrast, gifts...

The meaning of relevant property

The term 'relevant property' defines a category of trust property which is subject to a special regime for inheritance tax (IHT). As described in...

Practice notes

Capacity to litigate

On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them...

9th Nov

Practice notes

Offshore trusts—offshore income gains (OIGs)

Offshore income gains (OIGs) are gains realised on the disposal of interests in offshore funds which are either:•non-distributor offshore funds, or...

9th Nov

Practice notes

Trust disputes—sham trusts

The issue of sham is most likely to be raised by the settlor's creditors or former spouse if the settlor is involved in matrimonial proceedings, who...

9th Nov

Practice notes

What is an offshore trust?

A trust is formed either by lifetime gift or on death when a person (the settlor) transfers assets to another person or persons (the trustees) to hold...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Beddoe applications

When trustees are engaged in trust litigation, issues often arise as to how their litigation costs are to be funded. A Beddoe application is the best...

Produced in partnership with Kate Davenport QC of Outer Temple Chambers and Adele Isaacs of Bankside Chambers 12th Jan

Practice notes

Bermuda trusts

This Practice Note outlines Bermuda trust law and focuses upon its unique features and recent reforms, such as Bermuda's regime for private trust...

Produced in partnership with Vanessa Lovell Schrum and Caljonah Smith of Appleby, Bermuda 12th Jan

Practice notes

Cayman Islands STAR trusts—common uses

This Practice Note provides guidance on Cayman Islands STAR trusts. For general information about the Cayman Islands, see Practice Note: Private...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Trust disputes—court jurisdiction and procedure

Trust litigation has been classified as being of three types:•a dispute as to the trusts on which trustees hold the subject matter of the settlement•a...

9th Nov

Practice notes

Termination of trusts—methods of termination

Duration of a trustThe duration of an express trust is subject to the restrictions imposed by the rules against remoteness of vesting and against the...

9th Nov

Practice notes

Termination of trusts—beneficiaries

Duty to distribute to the correct beneficiariesOn the termination of the trust, the trustees are under a duty to distribute the trust assets to the...

9th Nov

Precedents

Deed of appointment terminating discretionary trust

This Deed of Appointment is made on [date] by [trustee] of [address] and [trustee] of [address] (the Trustees).Background(A)This Deed is supplemental...

9th Nov

Practice notes

Situs of assets for succession and IHT

When you advise an individual on cross-border issues or offshore tax planning, it is important to establish the 'situs' (ie location) of the assets...

9th Nov

Precedents

Partial deed of revocation of lasting power of attorney

This partial deed of revocation is made on [date] by [donor] of [address].1I granted a Lasting Power of Attorney for [Financial Decisions/Health and...

9th Nov

Practice notes

Liferent trusts—Scotland

Liferent trustsA liferent trust (or trust liferent) is a trust which, when settled, confers a use and income benefit, or both, in the trust property...

Produced in partnership with Peter Murrin of Turcan Connell 12th Jan

Scottish Law

Practice notes

UK taxation of offshore trusts—inheritance tax

An offshore trust is any non-UK resident trust. The liability of trustees of an offshore trust to UK inheritance tax (IHT) is not dependent on the...

Produced in partnership with Jenny Wilson-Smith and Emma Haley of Boodle Hatfield 12th Jan

Practice notes

Creation of trusts in Scotland

Express creation of trustsA trust is constituted expressly where the owner of property (the truster) transfers property to trustees to hold for...

Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee 12th Jan

Scottish Law

Most recent Community and residential care content

Practice notes

Coronavirus (COVID-19)—Care and Support Needs Assessments

Community care assessments are conducted by the local authority (LA) where someone aged 18 years or older is ordinarily resident. LAs have a duty to...

Produced in partnership with Craig Ward of Lundie, solicitor of Craybeck Law LLP 9th Apr

COVID-19

Practice notes

Care and support needs assessments

Coronavirus (COVID-19): The content of this Practice Note is temporarily affected by the coronavirus (COVID-19) pandemic. For further guidance, see...

Produced in partnership with Craig Ward of Lundie, solicitor of Craybeck Law LLP 9th Apr

Practice notes

Independent mental capacity advocates

Note that this Practice Note addresses only English law. Following devolution there are now differences between the English and Welsh rules on many...

9th Apr

Practice notes

Benefits and means testing

There are a number of benefits that older people can claim that carry a financial eligibility requirement. In practice this means that if their...

9th Apr

Practice notes

Guide to Care Act 2014 repeals [Archived]

ARCHIVED: This archived Practice Note provides a guide as to what legislation and guidance was repealed, revoked, replaced and cancelled as a result...

8th Apr

Practice notes

Assessment for residential accommodation

Coronavirus (COVID-19): The content of this Practice Note is temporarily affected by the coronavirus (COVID-19) pandemic. For further guidance, see...

23rd Mar

Practice notes

Care funding options

Note: This Practice Note must be read in the light of the implementation of the Care Act 2014 on 1 April 2015. Substantial repeals to legislation have...

22nd Mar

Practice notes

Eligibility for residential accommodation

When an assessment concludes that an adult requires residential accommodation they have the choice, depending on their personal finance situation,...

19th Mar

Practice notes

Nursing and residential care contracts

When entering a care home, the future relationship between the new resident and the administrators of the home should be governed by the terms of a...

17th Mar

Q&As

Does a local authority need to apply to the Court of Protection for a personal welfare order in order to transfer an objecting and incapacitated adult from home to a care home at which a standard authorisation of the deprivation of liberty is to be granted by the Supervisory Body?

See the following content:Assessment of CapacityPractice Notes:•Mental capacity—an introduction•Mental Capacity Act 2005—the codes of...

5th Feb

Q&As

I have been asked by a surviving spouse (following the death of her husband) to prepare a deed of variation to create a life interest for herself in her late husband's 50% of the matrimonial home. I am concerned that this could be considered a deprivation of assets by the local authority if the surviving spouse went into a home. Is there any guidance on this?

This response deals solely with deprivation of capital in the context of means testing of benefits that may be available in the event that an...

22nd Jan

Q&As

A local authority has two charges registered against a freehold property in Wales in respect of care charges under the Health and Social Services and Social Security Adjudications Act 1983. The service user and sole owner of the property died intestate two years ago, however to date a grant of representation has not been obtained and so the debt for care fees remains unpaid. Is it possible to force a sale as creditor to discharge the debt, as the charges take effect as a legal mortgage under the Law of Property Act 1925?

The regime under the Health and Social Services and Social Security Adjudications Act 1983 (HSSSSAA 1983) allows for the charging of the provision of...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

Could a claim for repayment of care fees be barred, eg. under the Limitation Act 1980 or otherwise?

The liability to pay care fees is often a source of resentment, as the state expects most people to fund, or contribute to, the cost of their care....

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Jan

Q&As

A surviving spouse is left an interest in possession in half of the matrimonial home in the Will of the deceased spouse. The Will contains a provision such that if the property is sold in the surviving spouse’s lifetime, the proceeds pass down to children. If this occurs prior to the surviving spouse going into care, could this be deemed to be a gift made by the surviving spouse for the purpose of deliberately depriving themselves of assets under the Care Act 2014?

In this Q&A, it would appear that the deceased spouse had a 50% interest in the matrimonial home. It is to be assumed that the other 50% was owned by...

Produced in partnership with Helen Galley of XXIV Old Buildings 8th Jan

Q&As

Can an elderly client give their property to their children to limit the amount of nursing home fees they will need to pay if that becomes necessary without suffering adverse consequences?

The Care Act 2014 (CA 2014) requires a local authority to assess an individual’s need for care and support.A local authority (LA) has the right to...

7th Dec

Q&As

If a person living in a care home owns a 50% beneficial interest in their former residence which they operated as a bed and breakfast business with their son, who continues to own the other 50% interest and who continues to live at the property with their wife and continues to operate the business, can the 50% interest owned by the person living in the care home be disregarded in an assessment of their capital for the purposes of assessing their liability to contribute towards the cost of their care?

In response to this Q&A, we have assumed that the local authority has brought the value of the care home resident’s 50% beneficial interest in the...

29th Nov

Q&As

Are life policies classed as exempt assets by the local authority when determining an individual’s capital in assessing how much they must contribute towards their care fees? Are personal representatives obliged to report to the local authority if assets come to light after death that were not included in their financial assessment of the deceased’s capital?

Various types of assets and property are disregarded for the purposes of assessing a person’s liability to contribute towards their costs of care...

29th Nov

Q&As

What is the relationship between section 47 of the National Health Service and Community Care Act 1990 and section 9 of the Care Act 2014 and which provision should be followed?

Section 9 of the Care Act 2014 (CA 2014) came into force on 1 April 2015 as stipulated by s 2 of the Care Act 2014 (Commencement No 4) Order 2015, SI...

29th Nov

Q&As

Where a property is occupied by a daughter/deputy and the mother is in residential care, can the daughter/deputy use the mother’s assets to maintain the property?

There appears to be two issues:•the powers/duties of a deputy to maintain the property of the patient, and•the attitude of the relevant local...

29th Nov

Q&As

My client owns a nursing home and one of the residents (who has sufficient funds) stopped paying their fees 18 months ago when they discovered the local authority paid other residents’ fees. The local authority refuses to help find the resident an alternative place. My client will pursue recovery of the debt and wishes to return the resident to their own home. The resident will not be able to manage at home and my client does not wish to be liable for any accidents that occur. Can the nursing home remove the resident?

The arrangements between a capacitous individual and their care provider are usually subject to written contract which will determine the basis for...

29th Nov

COVID-19