The Truth about Deliberate Deprivation of Capital
Thinking about making a significant gift to your children? Worried that the council might snatch back the gift if you later go into a care home? Here’s what you need to know.
Many parents, in this uncertain world, are looking for ways to give their children a “living inheritance”, by gifting assets to their children in life, rather than on death through a will. There is increasing evidence, as a 2015 report from HSBC bank attests, to suggest that that the traditional inheritance is starting to die out, with a growing proportion of retired people giving large sums of money, or ownership of their family home, to their children and grandchildren.
These living inheritances are usually given to minimise inheritance taxes, provide certainty and security for the family as a whole, and to see loved ones enjoy the benefit of the assets. They are given either as outright transfers, or as trusts set up by the creation of a Family Trust Deed.
There is however a spectre that hangs over a decision to give a significant gift to a child or grandchild, particularly when the gift in question is something as important as the family home.
The issue boils down to this simple but chilling question:
“What if, in years to come, I need to go into a care home? Can the council snatch back that gift from my loved ones and use it to pay for my care?”
And the reason why this question is such a worry, is because, in some circumstances, the answer to that question can be a resounding “yes”!
When can a council snatch back a gift?
Local authorities are entitled to rely on an anti-avoidance rule against “deliberate deprivation of capital”. This is where someone intentionally decreases their overall assets in order to reduce the amount they are charged for their care.
When carrying out a means test for care, local authorities can look for evidence of deliberate deprivation of capital. If deliberate deprivation is proven, the asset in question can still be taken account of in the means test, despite having been gifted to a loved one.
So, when considering whether to make a significant gift to a loved one, it’s vitally important to know where you stand regarding Deliberate Deprivation of Capital.
What is “Deprivation”?
Deprivation, in this context, would include: -
transferring ownership of an asset to someone else - for example signing your house over to your children or giving them a large sum of money,
putting assets, such as savings, investments or the family home, into a Family Trust.
Investing money in certain types of government bonds which are exempt from care home fee assessment.
Pretty much any decision to gift money or assets could be regarded as “deprivation”, by that definition! Thankfully, deprivation on its own isn’t enough to trigger the anti-avoidance rule.
It’s the intention behind the deprivation that’s the crucial consideration – i.e. whether the deprivation is “deliberate”
What is meant by “deliberate”?
To find that someone has deliberately deprived themselves of an asset in this context, a local authority must establish that avoiding care costs was the only reason, or a significant reason, why the asset was given away.
Local authorities have the right to investigate whether a deprivation was deliberate, and their investigation can include: -
The timing of the gift – at the time of the gift was there a reasonable expectation that residential care would be needed in the near future?
Was there also a reasonable expectation that a contribution would have to be made to the cost of care.
Foreseeability: the key factor
The rules surrounding deliberate deprivation say it would be unreasonable to for a council to decide that someone had disposed of an asset to avoid care fees if, at the time of depriving themselves, the person was fit and well and could not have foreseen they would be needing to go into a home.
So, when considering whether to make a significant gift, it is important to make sure you can clearly demonstrate two things, to reduce the risk of the gift being snatched back in the future: -
- that avoidance of care costs is not you main or only reason for giving the gift; and
- that you are fit and well, able to live independently and can’t currently foresee a need to go into a care home.
Simply making a straightforward transfer, for example of a significant chunk of your investments, or of ownership of your home, is unlikely to achieve those two goals. However, there are two readily available safeguards you can deploy.
First, instead of simply transferring absolute ownership of the assets, you can make the gift via A Family Trust, by executing a Family Trust Deed. You can include clear wording in the Family Trust Deed, spelling out exactly why you are making the gift, and why you are making it now.
For example, you might be doing this for tax reasons, or to enable an asset to pass to the next generation of your family without the expense and complication of going through probate at the end of your life.
Stating your reasons clearly, in a readily accessible document, provides clear evidence of your intention, and eliminates the suggestion of trying to avoid care costs.
Second, it’s wise to arm yourself with evidence that you are fit and well, able to live independently and have no presently foreseeable need for care and support. This can be in the form of a letter from your GP. You often don't even need a medical examination for this; your GP will often be willing to write the report based on a review of your medical records. You will usually have to pay your GP for this service, but it’s normally quite a modest fee.
This evidence makes it clear that the gift hasn’t been made at a time when there is a reasonable expectation of having to go into care and having to pay for it.
Employing these two safeguards when you give a significant gift will make it difficult for a local authority, in the future, to try snatch back the gift on grounds of deliberate deprivation.
However, it’s important to be realistic. These safeguards are not a cast-iron solution. All they do is give you a fighting chance of defeating a deliberate deprivation claim. There’s nothing to prevent a local authority from launching an investigation, and local authorities don't publicise their policies about gifts and potential “deliberate deprivations”.
Which means it would be a good idea to employ a third safeguard, which is to register a Lasting Power of Attorney for Property and Financial Affairs. Because there’s nothing you can do to prevent a local authority chancing their arm by making an investigation, you need to be forearmed to defend the gift, if the issue comes up.
Unfortunately, this is an issue that’s only going to come up when you’re in need of residential care, which will probably be when you’re too frail and vulnerable to stand up for yourself. Registering your Lasting Power of Attorney will mean you have someone officially in place to stand up for you against the council and uphold the gift.
If this is an area of concern for you or your family, don't hesitate to get in touch for more advice and information about what to do. Just call us on 0151 601 5399, or fill in the contact form below. We're here to help.
Vlog: How to Divorce-Proof your Children’s Inheritance
A simple video tutorial addressing a concern held by many parents of adult children.Read more...
Take me to Court (as your barrister of course!)
Barrister Raj Kanda tells us how a revolution in legal services means you can access his help directly.Read more...
Why Trusts are your Best Friend
A short video blog explaining why trusts are a user-friendly and economical part of your overall estate planRead more...
Shielding your Buy to Let Portfolio from Inheritance Tax
This is a quick video introduction to seven ideas you can explore to manage your exposure to Inheritance Tax if you're a buy-to let investorRead more...
Estate Planning Video Tutorial for Buy to Let Investors
This short video introduces you to the main points you need to consider if you are responsible for a buy to let portfolioRead more...
Video Blog - How to Protect your House from Care Fees
This is the biggest issue for more mature parents whose kids have flown the nest - how can we save the kids' inheritance from being wiped out by care fees?Read more...
Video Blog: How to Pay for a Funeral Without Going Into Debt
It's a terrible time when you've just been bereaved, and the last thing you need is practical worries about paying for the funeral.Read more...
A Scary Story! Video Blog
My video explaining how a simple keystroke error almost cost someone their £100k+ inheritance … and what easy action you can take to safeguard yourself against such a thing happening to you.Read more...
Older Childless People “Dangerously Unsupported”
More than a million childless people aged 65 or above are living with dangerously inadequate levels of support, suffering isolation and lack of access to formal care - and that number is expected to double by 2030.Read more...
Taking the Long View
You need to make an estate plan to truly future-proof your family. Here's why, and how to go about it.Read more...
Brexit Turmoil Delivers Reprieve for Bereaved Families
At last, a tiny bright spot amongst the relentless Brexit related misery.Read more...
£110,000 for seven years of care
A court has awarded £110,000 to a granddaughter who provided devoted live-in care for her grandmother for seven years.Read more...
What to Do When a Loved One Passes Away
When you lose someone, the last thing you want is to think about the practicalities, but there are some essential steps you must take to safeguard the estate and ensure that it is passed down as smoothly as possible.Read more...
Estate Planning Essentials for Same-Sex Couples
How to avoid the four most common estate planning pitfalls that can affect same-sex couples.Read more...
D’Oh! Five Ways to Seriously Mess Up Your Estate Plan
If financial security and peace of mind for your nearest and dearest is your priority, it’s essential that you maintain a valid and up to date estate plan.Read more...
Talking About Estate Planning with your Parents
Have your Mum & Dad made their estate plan yet? Should you be concerned?Read more...
What About Your Digital legacy?
How to plan for what will happen to all your online accounts after you’ve gone.Read more...
Don’t let your business get clobbered!
It’s your responsibility to safeguard your business. Here’s how to do it in three easy steps.Read more...
Cost of Care Rises by 10% in Just One Year
The cost of a place in a care home is rising at its fastest rate ever, while pension incomes have little hope of keeping pace.Read more...
Hats off to the “Parentsioners”!
Look around, and you’ll notice you're surrounded by people who quietly go about their daily business of achieving seemingly impossible feats of hard work and organisation. You might be looking at just such a person in the mirror.Read more...
Contested Will Saga Ends in Prison Sentence
A retired window cleaner, who was left £280,000 in the will of a customer, was jailed for failing to hand back the money when ordered.Read more...
Will Inheritance Tax be Simplified?
The Office for Tax Simplification is reviewing the complex Inheritance Tax system. Does this mean there will there be less tax to pay?Read more...
Daughters try to block father’s marriage
Court of Protection forced to decide whether daughters can lawfully block their father’s marriage to his partner of 20 years.Read more...
Three Brothers in Court Battle Over their Mother’s Legacy
The three Heath brothers have already incurred £50,000 in court costs because they didn't have the awkward family conversation about inheritance.Read more...
We Need to Talk About Inheritance
With inherited wealth set to double in the next 20 years, it’s time to get over the awkwardness and have the conversation now.Read more...
Inheritance Tax Bonanza for HMRC
A 23% spike in Inheritance Tax receipts is being blamed on frozen allowances, rising house prices and more aggressive tax collection.Read more...
Dementia Tax – Some Good News?
Cautious optimism as Health Secretary vows to bring forward plans to make paying for care fairer.Read more...
The Tragic Case of “Mr Y”
52-year-old "Mr Y" is being kept alive in a coma while the Official Solicitor defends legal principles.Read more...
Can the Government be Trusted on the Dementia Tax?
Little has been said about the cost of care since the 2017 Dementia Tax controversy. But the few hints dropped by the government have both insulted and threatened parents of adult children.Read more...
Power of Attorney Refunds Available
If you paid £110 to register your Lasting Power of Attorney between 1st April 2013 and 31st March 2017, you are entitled to a refund of up to £54.Read more...
Case Study: Jim and Jean’s Story
Jim and Jean have two grown-up children with complex disabilities. Here’s how their estate plan met their needs.Read more...
The £50million Final Salary Pension Transfer Boom
Here’s why so many savers are moving away from their final salary pension schemes? And why your pension capital should be a key consideration in your estate plan.Read more...
Just how risky are Lasting Powers of Attorney?
An invaluable tool? Or a passport to financial abuse?Read more...
Case Study: Guy and Steve Safeguard their BusinessRead more...
Sheila Kitzinger’s Good Death
Sheila Kitzinger, a passionate advocate for the rights of expectant mothers, pioneered the use of birth plans. And she brought the same control and empowerment to planning her own final days.Read more...
We’re Not Getting Any Older
Life expectancy at age 64 has all but ground to halt, due to the austerity years and a surge in dementia. What can you do for yourself while we wait for a cure?Read more...
Lynda Bellingham’s Sons Betrayed, as Feared
The late Lynda Bellingham’s lack of a proper estate plan risked leaving her sons with nothing – now her widower has done exactly what she least wanted him to do.Read more...
Probate: What’s it all about?
If you are dealing for the first time with the estate of someone who has died, you must quickly get to grips with some probably unfamiliar concepts. This is a short introduction to the issues you may have to deal with.Read more...
Redefining old age?
Seismic demographic changes mean we must re-think what it means to be “old”, says one of the UK’s leading social scientists.Read more...
Case Study: Ray & Joyce
How this retired couple made sure most of their main asset would be inherited by their children – and not the council.Read more...
Business Property Relief
If you are a business owner, it’s likely that your business is one of your main assets. You may want to pass your business to the next generation as a going concern, or you may want your dependants to benefit from the value of the business after you’ve gone.Read more...
Seven Inheritance Tax Tips for Buy to Let Investors
If you’ve invested in buy-to-let, you’ve probably done so with the intention of creating a steady income for yourself, together with capital to hand on to the next generation when you’re gone. But unfortunately, wealth tied up in residential lettings often comes with a significant Inheritance Tax burden.Read more...
The Residence Nil Rate Band
A guide to making the most of the new Inheritance Tax allowance.Read more...
Case Study: Tony and Diane’s Story
How Tony and Diane secured an Inheritance-Tax-free legacy for their daughter and planned a secure retirement for themselves.Read more...
What’s all this fuss about The Dementia Tax?
It’s odd that there has been so much vociferous debate about “the dementia tax”, as if this is an outrageous new concept proposed by a rapacious government. The truth is that people with dementia have been robbed of their legacy for decades to pay for their care.Read more...
Separating Elderly Couples in Care is Inhumane
It's scary that Social Care leaders actually had to be told at a recent conference that separating elderly couples in care is inhumane.Read more...
Inheritance Tax Planning with Enterprise Investment Schemes
Not keen on the government gate-crashing your funeral to demand yet more tax? An Enterprise Investment Scheme may be a useful addition to your estate planning toolkit.Read more...
Sons’ Inheritance Blown on Legal Fees
Two brothers have wasted their entire inheritance on a doomed court battle to contest their late father’s will.Read more...
Helping your Parents to Cope
The Guardian newspaper recently published a helpful group discussion, in which readers shared their own experiences of what has worked for them in offering a helping hand when a parent is finding it all too much.Read more...
The Supreme Court’s Decision in Heather Ilott’s case.
The 2015 Court of Appeal Decision in Heather Ilott’s case has been overturned. The Court of Appeal’s 2015 award of £163,000 has been reduced to £50,000.Read more...
Charitable Legacies - a Win-Win
Leaving a charitable legacy in your Will makes you feel good AND gets you an Inheritance Tax discount – what’s not to love?Read more...
Our friend died without saying she’d left us £110k
The rate at which estates go unclaimed has risen two and a half times in the last five years, according to government figures recently released.Read more...
Who gets the kids if something happens to us?
It’s a horrible thought, isn’t it? Nobody wants to imagine their beloved child being orphaned, but thinking about the unthinkable, and making proper plans, is a vital parental responsibility.Read more...
Is Your Child’s Inheritance Divorce-Proof?
Doreen Crowther may lose her house because her inheritance wasn't divorce-proofed.Read more...
Planning for the Cost of Care
Will poor health in later life put your home at risk?Read more...
Status Quo Rocker Rick Parfitt Disinherited his Wife
The late Status Quo star Rick Parfitt disinherited his wife in the final days before he died, it has emerged. But all is not as it seems.Read more...
My Health Scare - and why I’m so glad I made an Estate Plan
My New Year was overshadowed by a major health scare – but my estate plan assured me that, whatever might happen, my clients and loved ones are protectedRead more...
Your New Year’s Resolution?
If you haven't made your will yet, you risk leaving a mess behind for the people you love.Read more...
George Michael’s Estate Plan
Much missed pop legend provides for his sisters, god-children and favourite charities in his WillRead more...
Our 2017 Continuing Professional Development Programme
Our 2017 Estate Planning Training Programme for Accountants and Financial Services ProfessionalsRead more...
How a £2000 Inheritance Transformed 40,000 lives
Vashti Seth started a charity with a legacy from her dadRead more...
The £72million House Heist
Councils’ £72million raid on older people’s houses to pay for careRead more...
Royle Family’s Caroline Aherne Accidentally Left Her Mum with a £71,000 Inheritance Tax Bill
Inheritance Tax stress for Caroline Aherne's bereaved MumRead more...
“Get a Job!”: Disinherited Daughter’s Court Battle Ends in Humiliation
Danielle Ames loses her fight with her stepmother for a share in her late father’s fortuneRead more...
Danae Brook’s Story: A Blended Family Blighted by Intestacy
How Danae’s husband’s intestacy left this blended family in chaos.Read more...
The Truth about Deliberate Deprivation of Capital
Thinking about making a significant gift to your children? Worried that the council might snatch back the gift if you later go into a care home? Here’s what you need to know.Read more...
Disinherited Daughter v Stepmother
Disinherited Danielle Ames in Court Battle with her Stepmother over her "Idolised" Late Father's FortuneRead more...
Is the Traditional Marriage an Endangered Species?
In a major cultural shift, married couples are now in the minority as most couples choose to cohabit. Is this the beginning of the end for traditional marriage?Read more...
Video Blog - Inheritance Tax and You
Will my estate be affected by Inheritance Tax?Read more...
The Hurt and Rejection of Daisy Goodwin
It's every parent's responsibility to talk to their children about the legacy they might leaveRead more...
Trusts to Manage Inheritance Tax – One Rule for The Duke of Westminster and One for the Rest of Us?
The toxic urban myth that Inheritance Tax is for "the little people".Read more...
Toby Wales’s Story
The power of wills to transform lives for the better.Read more...
Heartache and Chaos from a Lost Will
Alison Shields tells of the distressing consequences of her father's lost will.Read more...
Father’s fear of making a will left his young daughter penniless
How Katy Young was accidentally disinherited by her father's fear of making a will.Read more...
Property tycoon sued beyond the grave.
Ex-civil partner of deceased millionairess in court bid for larger settlementRead more...
Stepfamilies & Blended Families Estate and Legacy Planning
A video guide for people who have stepfamilies or blended familiesRead more...
Frugal Bachelor Leaves Surprise Legacy of £1.5million to his Local Hospital
Heartwarming Generosity of Peter GibbonsRead more...
Case Study - How Dervla’s Inheritance Tax Planning Saved £120k
In today’s climate, “fail to plan” means “plan to pay lots of Inheritance Tax”Read more...
Video Blog - Estate Planning Tips for Business Owners
A Video Guide to Keeping your Business ResilientRead more...
Angela Rippon – a Happy Singleton Putting her Affairs in Order
In advance of the BBC documentary "The Truth About Dementia", Angela Rippon shares her concerns.Read more...
“Do Not Resuscitate” – Could this Happen to You Without your Consent?
The NHS knows that it's happening - and why it's happening - but won't be doing anything about it anytime soon. Here's how to protect yourself and your family.Read more...
The 8 Vital Questions You Should Answer Before You Make a Will or Estate Plan
How to choose an estate plan that's fit for purpose and within your budgetRead more...
Estate Planning Tips for Happy Singletons
This is an estate planning guide for single people - what you, as a happy singleton, can do to plan a secure future and a meaningful legacy.Read more...
Oxo Mum’s Family Torn Asunder by a Badly Made Will
How poor estate planning has left the late Loose Women star’s sons powerless – and possibly penniless.Read more...
Case Study - Bill and Anne, Buy to Let Investors
How we helped a couple ensure a secure future for theselves, their family and their buy to let portfolioRead more...
Estate Planning Considerations for Buy to Let Investors
This is the first in a two-part series that looks at the estate planning concerns of buy to let investors - and some of the many available solutions.Read more...
Come Live with Me and Be my Love ....
Five practical tips for living together securelyRead more...
Colin and Eleanor’s Story - Peace of Mind for Four Generations
This is the story of Colin and Eleanor, great-grandparents who wanted the peace of mind of knowing their assets were protected for the four generations of their family, and that their own personal wishes were respected no matter whatRead more...
Soaring Probate Fees - a Stealth Tax
The Ministry of Justice has announced a fee scale that increases the cost of probate by up to 130 times the present fee. Here are some ways of managing the cost of leaving a legacy for your family, so their inheritance is maximised.Read more...
Joy Williams’ Legal Battle - And Her Lessons for Couples Living Together
Joy Williams has won an exhausting, four-year court battle to save her home – but it could all have been avoidedRead more...
How a £90 Will Cost a Daughter Half a House
Ebenezer Aregbesola used a low-cost will-writing service to prepare his will - consequently a crucial loophole was missed, which robbed his daughter of her inheritance.Read more...
Making Your Child’s Inheritance Divorce-Proof
Marriage isn't always forever - is there a way to protect your child's inheritance from the consequences of a divorce?Read more...
How A Blunder Over Geography Led to a High Court Battle Over a Scientist’s Will.
A High Court battle between The Royal Society and an eminent scientist's family centred on the meaning of the phrase "United Kingdom".Read more...
Twice the Maternal love, but Twice the Inheritance Tax Burden
The Utley family have shared in the national press their heart-warming story of sisterly devotion, and their worries about the way a wholly unexpected turn of events has placed them in a dilemma they’re unsure how to solve. Here are some potential solutions.Read more...
Guest Blog - Building a Secure Future with ISA’s
This guest blog is brought to you by Neil Ridpath, an Independent Financial Advisor with Neil J Ridpath Wealth Management Limited. A fundamental part of planning for yours and your family’s financial security is making the most of your assets. Here, Neil tells us about Individual Savings Accounts, and why they are such a useful tool for getting the best return form your hard-earned savings.Read more...
Standing Up for the “Mustn’t Grumble” Generation.
Recent reports suggest that older people are getting a raw deal in many aspects of life, because they generally don't like to complain. How can we make sure older people receive the great service they deserve?Read more...
Seize the Day! Overcoming Procrastination about Protecting your Legacy
How to overcome the impulse to put off important decision, like protecting your legacy.Read more...
Self employed? Here’s how to safeguard your business and your family
If you're self-employed, your business can be your greatest asset and your greatest responsibility - here's how to keep it safe. come what mayRead more...
Subscribe for Updates & Information
"Thank you for your professional services and personal touch. I felt I was dealing with, and making, a friend. "