Mr and Mrs B have been married for many years. Mr B was the sole legal owner of the marital home until a few years ago when, owing to his failing mental health, ownership was transferred in full to Mrs B. The day is fast approaching when Mr B will need to go into permanent residential care, whereupon Mrs B plans to sell the property and move to somewhere smaller making, she hopes, a substantial profit in the process.

My reading of the capital disregard rules in relation to property owned by people in care but occupied by a spouse etc, only applies to property in which the person in care previously lived. So it seems to me that if a DM smells a rat about the motives for the transfer of ownership of Mr and Mrs B's current property and decides that deprivation rules apply, then the whole value of the sale of the marital home might be deemed to be Mr B's notional capital and not just the amount left over after the purchase of Mrs B's new home.

It seems to me that they may be in a safer position if they move into the smaller property before Mr B goes onto care.

My temptation is to advise Mrs B to stay where she is, but am I being too cautious?

Firstly - how many years ago was it transferred ? Secondly, the DM would have to show that the capital was deliberately disposed of with the intention of obtaining Benefit: in this instance that would be saying that the family was looking at some hyperthetical point in the future and envisaging a time when Mr B would be taken into permanent care.

In this situation the property was transferred for one reason only - Mr B's mental health was such that they forsaw a day when he may not have been able to manage his affairs - (an extremely sensible thing to do). However, I doubt very much whether Mrs B ever dreamt a day might come when she would see her Husband have to go into care ....

Having said all the, there are some strange DM's decisions around nowadays...

Is it also worth considering that, if they were to separate, the courts would probably decide that she had a share in the home. That should then be the starting point, if one is needed, for any calculations.

I would also point out that if his residential care is funded by the Local Authority SSD (except for S.117), there is a potential for a seperate deprivation decision. Whilst she stays in the property there can never be any deprivation as had the transfer not taken place the value of the property would have been disregarded.

Should she sell it and move the LA are likely to make a decision as to whether it is deprivation.

Hope this helps

Should he be funded under Continuing Care or Sec. 117?

If not, and the Local Authority SSD are funding the care home, would a deprivation/notional capital decision regarding PC make any financial difference to him? An adverse decision that he is not entitled to PC would mean that he has less income to be taken off him under CRAG. An adverse deprivation decision under CRAG is likely have a greater potential impact for him.

Transferring legal title does not, of itself, transfer his (if any) beneficial interest. Only if he transfers his beneficial interest (or ties that beneficial interest up where he cannot get at it) or transfers his right to that beneficial interest do the notional capital rules come into play.