A 49-year-old man from Wiltshire is worried that his sister, who holds power of attorney for their 88-year-old mother with vascular dementia, is using the family home to benefit her son rather than fund their mum's care. The mother lives permanently in a nursing home costing £1,600 a week. She has £38,000 in savings and owns her house, worth about £425,000, outright.
His sister, the sole property and financial affairs attorney, has let her 27-year-old son move into the house after his recent split, charging him £300 a month, while an estate agent said a similar house would rent for around £1,400. She has also asked the man to contribute £500 a month towards the nursing home fees so the house does not have to be sold. He believes she is using the power of attorney to shield inheritance, but she says he is being naïve and that family looks after family.
Legal duties of an attorney
Consumer champion Sarah Davidson, responding to the query, said the sister's wish to help her son may be understandable, but the mother's home is not a family hardship fund. The £1,600 weekly care bill amounts to £83,200 a year, and the £38,000 savings will be gone in under six months. In England, anyone with capital above £23,250 is generally responsible for the full cost of permanent care home fees, and the house is usually included in the financial assessment unless a spouse, dependent child, close relative aged 60 or over, or a close relative with a qualifying disability still lives there.
Davidson noted that the nephew does not obviously fall into a protected category, and the means test looks only at the mother's income, savings and property, not the children's. There is no reason for the man to subsidise care merely to preserve an estate. If the nephew wants to stay, the council could pay the fees and place a legal charge on the property, with the debt repaid when the property is later sold or from the estate.
Below-market rent as a gift
The below-market rent is the more serious concern. An attorney can manage a donor's home, including renting it out, but must keep the donor's finances separate, avoid benefiting themselves or people close to them, and act in the donor's best interests. Government guidance states that allowing someone to live in a donor's home for less than market rent counts as a gift, which requires Court of Protection approval. Charging £300 instead of £1,400 leaves a £1,100 monthly gap, some £13,200 over a year, money the mother could use towards her own nursing home bills.
Davidson advised a formal family meeting, keeping the tone factual, and reminding the sister that financial decisions affecting living arrangements, medical care or daily routine must be discussed with the health and welfare attorney. The man should request a current care-home contract, a written cashflow forecast, the estate agent's rental appraisal, the proposed tenancy agreement, and a record of every decision made under the LPA. The sister should explain why £300 is in the mother's best interests and how the rent was set.
Next steps and reporting concerns
At the same time, the local authority should be asked for both a care needs assessment and a financial assessment. A self-funder is still entitled to a free needs assessment, providing an independent record of care requirements. It is also worth asking the nursing home or GP whether an NHS Continuing Healthcare checklist is appropriate, as eligibility depends on the complexity, intensity and unpredictability of needs, with successful applicants having care arranged and funded by the NHS.
If the sister refuses to share records, keeps her son in the property at a concessionary rent without court authority, or blocks the financial assessment, concerns can be reported to the Office of the Public Guardian (OPG), which can investigate attorneys who misuse money, fail to act in the donor's best interests, or put their own interests first. The OPG can seek information, take legal action and apply to the Court of Protection.
