Your spouse or partner

Your local council will assess your savings and income to work out how much you will have to pay towards the cost of your care. The savings or income of your spouse or partner should not be taken into account when working out how much you have to pay; you should be assessed solely on the value of your own resources. Where you have joint savings, only your share of these savings should be taken into account. It will be assumed that you own a 50 per cent share regardless of what your real share might be.

However, under separate rules, in England, Wales and Northern Ireland, the local council can approach your spouse to see if they are willing, and able, to make some payment towards the cost of your care. No other relative or member of the family can be asked to contribute. Only your husband or wife is classed as a liable relative in this way. If you have registered a civil partnership, you will not be affected by this rule and your civil partner will not be required to contribute. In Scotland the ‘liable relatives’ rule was abolished from 5 October 2007. If you live in Scotland your husband or wife cannot be approached to make payments towards the cost of your care.

The law on liable relatives in England, Wales and Northern Ireland is likely to change to follow Scottish law but no date has been given for this. The Department of Health is recommending that before the law changes local councils do not ask spouses for a contribution.

The local council does not have a legal right to assess your husband or wife’s income and assets. If it wants your spouse to make a payment, the local council has to ask him or her to agree to a sum that they can afford to pay. There are no national guidelines as to how this amount should be worked out. Your local council should come to an agreement with your spouse about what they can afford through negotiation.

If your husband or wife doesn’t agree to make a payment, or will not agree to a particular amount, your local council will have to go through the courts in an attempt to set a ‘reasonable’ amount. Usually, court action will only be taken as a last resort, where it is very clear that your spouse can afford to make a contribution without hardship but does not wish to do so.

It is important to note that even if the requested payments are not being made, the local council still has an obligation to provide the care you have been assessed as needing.

Giving away assets

Sometimes people ask whether it is possible to give away their home or savings so that they do not have to pay for their place in a care home. If you are considering this, it is important, not only to be aware of the legal situation, but to think about the implications for you of giving away property or savings. Although the legal situation is complex, the primary points are as follows.

It is illegal to make over property or savings to another person in order to qualify for financial help from your local council. This is called deprivation of assets. If your local council believes that you have deliberately given away assets in order to reduce or avoid care home fees, it has the power to treat you as still having those assets – known as notional capital.

There is no set time limit within which giving away property or savings is treated as deprivation of capital. However:

• If the transfer took place up to six months before you moved into the care home, the local council may try to claim the fees from the person you have given your assets to.
• If the transfer took place more than six months before you moved into the care home, the local council may consider whether it is possible to recover the fees from you personally. This means that you could be given a bill for your home fees,even though you don't actually have the money any more.

The local council will be more interested in the intention behind any transfer of assets than how long ago the transfer took place. If a main reason was to avoid paying for care fees it might investigate, even if the transfer took place a few years ago.

If this does happen to you, it is not entirely clear how the local council would go about pursuing this debt, although there would appear to be a number of routes open to it. This reinforces the importance of getting expert legal advice if you’re thinking about transferring savings or property to someone else.

Although it is important to investigate the legal aspects, it is also vital to look at the other ways in which a transfer of assets could affect you. You may feel that you are protected if you pass your home to your children or other members of your family. However, you may have no legal rights if things change in the future. It is not safe to assume that you will still have access to your house and the money tied up in it if you sign it over to someone else. For example, the person you have passed your property to could be declared bankrupt, get divorced, become disabled or die; any of these things could mean that the home you have given to them is at risk. Just over four per cent of people over 65 live in care homes; this is significantly lower than the likelihood of a son or daughter’s marriage ending in divorce.

You also need to think about whether you are placing limitations on what you can do in the future. For example, at some stage you may want to sell your home and buy a smaller property or a house in a sheltered scheme. This might not be possible if your home is in someone else’s name. It is not always safe to assume that the person you have passed your home to will be willing to sell when you want them to.

If you have a lot of capital, perhaps because you have sold your home, you may find it helpful to get expert financial advice on investing it to help pay for your care. Help the Aged Care Fees Advice service is designed to help you to plan your finances so that you can meet the costs of paying for care – see 'Useful Contacts' for contact details. Alternatively, you may wish to consult your own financial adviser or solicitor.

As the majority of older people do not move into a care home, but carry on living independently, you may want to think about holding on to your home and capital, and maintaining your independence and control over your own money.

If you are thinking about transferring your assets you should seek professional financial and legal advice before making a decision.

Third party top-up payments

Your local council can only ask a third party: for example, a relative or friend, to top up your fees if:

• you choose to move to a different care home from the one offered to you by your local council; and
• the fees are more expensive than your local council would normally expect to pay for someone with your needs.

A third party should not be asked to top up your fees if the only accommodation that is available to meet your assessed needs is more expensive than your local council would normally pay.

If you do want to move to a home that costs more than the local council would normally pay it may be possible to argue that this is the only home that is suitable for your assessed needs. If your local council agrees that this is the case, it should pay the extra fees.

Alternatively, someone else may agree to pay a top-up to make the fees up to the required level. This may be a relative: for example, a son or daughter, or it could be a charity. If this is a possibility for you, it is important to check what will happen if the fees go up in the future. Who will be responsible for meeting the costs? Will the third party undertake to cover the costs, or will the local council take some responsibility? An agreement must be reached between the local council and the third party helping to pay your fees before any contract is signed.

It is not usually acceptable for you to top your fees up from your own savings or personal expenses allowance. However, in England, Scotland and Wales there are two exceptions to this rule:

• if you have a deferred payments agreement with your local council; or
• if your property is being disregarded for the first 12 weeks of entering into care.

At the moment, in Northern Ireland, you will not be allowed to top up your own fees in these circumstances but this may be open to challenge. Check with SeniorLine on 0808 808 7575.

Information on getting financial help from charities is given in our information sheet no. 6, Financial Help from Benevolent Societies.