I’ve been really scratching my head about this one and would be very grateful for your feedback.
My client inherited half of her mum’s estate - total value about £200K.
She and her husband are executors - they have received the amount and it is sitting in a joint bank account.. which I think you could argue is an executors’ account. In other words it would be possible to argue that distributions to my client has not yet been made.
My client qualifies as a disabled person. She receives some care in the home which currently is fully funded by the LA. Research on the internet (and I admit it ChatGPT) would suggest that providing she hasn’t received the inheritance beneficially yet she can vary her entitlement under mum’s will and redirect it to a Disabled Persons Trust so she can keep her in home carer. She is desperate to use the inheritance to improve her house which is not currently adequate for her needs and worsening condition. So it would be the case that the whole inheritance would be used for her and for her benefit, thus complying with the requirements of a DPT.
Please confirm whether this is indeed an option for her.
As she is an executor and a beneficiary she is wearing two hats in this scenario.
On order for a deed of variation to be executed and valid the executor must sign in their capacity and the beneficiary which is being prejudiced by the terms of the deed if variation must also sign and agree to it in their capacity as a beneficiary.
Therefore, she will sign the deed of variation wearing her executors hat and then also consent to the variation wearing her beneficiary hat. It is at that point she will be carrying out the deliberate deprivation of assets as far as the LA will be concerned by varying the estate to take the £200k outside of their grasp for assessed care fees.
You would be better off finding out whether there is any restrictions on how the £200k would be spent before she drops under the capital threshold and again meets the LA threshold for funded care. I am not aware of there being restrictions on how individual can spend their money whilst paying for their care (especially if such expenditure is making essential alterations to her property to accommodate her disability) such that they then become eligible for funded care again and, that being the case, there is nothing to stop her making the alterations to the property and spending the money then being reassessed when her capital drops below the permitted amount.
She also ought to ensure she is receiving all the benefits she is entitled to regarding her disability as they are not all means tested.