Claims against estatesby Max Thorowgood

Entitlement to charge under Care Act 2014 - Section 14

LA entitled to charge:

• For meeting needs• For making arrangements to meet needs

Unless:

• Payments have already exceeded cap• Payment of the charge would leave the person with less than the

prescribed amount of their income

Deferred payment agreements

• ss. 35 & 36• Care and Support (Deferred Payment) Regulations 2014

Local authority must offer such an agreement if:

• residential care is provided by the local authority or could have asked the local authority to make the arrangements for his residential care (thereby including the self-funder);• legal or beneficial interest in a property which is his main or only home and which is not disregarded in the financial assessment; • has capital (other than the interest in the property) which does not exceed the financial limit; and,• is able to provide adequate security for the amount to be deferred.

Adequate security

• Charge over the legal or beneficial interest in the only or main residence

• Guarantee from a third party• Or such other security as the LA may consider

sufficient• Written consent from anyone who has an interest and

whose interest might prevent the LA from enforcing to:

• The creation of the charge• That charge having priority to their interest

Registration of Charges

Land Registry Practice Guide 19 @ 8.22

• Sole beneficial owner: notice or charge• Tenants in common: Form A• Joint tenants: Form MM

Floating charge register early.

Enforcement where there is no deferred payment agreement – s. 69

• Any sum in respect of which LA entitled to charge is a debt

Not enforceable where a DPA could have been offered unless:

• LA has offered DPA • The adult has refused

6 year limitation running from the date on which the debt fell due. Regs may specify, otherwise date of demand.

Enforcement where there is no deferred payment agreement – s. 69

Right of recovery against a person who misrepresents of fails to disclose a material fact.

• Includes any person• Extends to expenditure incurred as a consequence of

the misrepresentation• And sums which would otherwise have been

recoverable

Anti-avoidance – s. 70

Conditions for recovery from transferee:

• Transfer of asset• Intention to avoid charges• Transaction at undervalue

Liability is for the difference between the amount charged and the amount which would have been charged, limited to value of asset. Apportioned rateably in case of multiple transferees

Claims

Annex D of the guidance deals with the recovery of debts. It sets out circumstances in which the local authority should consider writing off debts. These include:• where the debt is small and the cost of recovery is disproportionate;• the impact of recovering the debt would adversely affect the well-being of the person receiving the care and support; and,• the person or their representative could not reasonably have been aware that the asset in question needed to be included in the financial assessment.

Enforcement

Application for an interim charging order.

Register the interim charging order.

Apply to have order made absolute. Very limited grounds for resistance once judgment entered.

Apply early to protect asset.

CPR 19.8

Grant of representation: must sue the representatives as such

No grant: Claimant must apply for a person to represent the estate.

Court may appoint anyone but is likely, save in straight-forward circumstances to require a grant to be taken.

Unsatisfactory representative

s. 50 Administration of Justice Act 1985 – Court has power to remove some or all of the representatives.

High threshold: fraud or dishonesty, serious maladministration; or stymieing progress.

Unproven will

Citation of executor to take a grant by a person having an inferior right:

• Residuary legatee holding in trust• Residuary legatees including those with a life interest• Their personal representatives• A specific legatee or a creditor

Intestate and solvent

‘Clear off’ all those having a superior right to a grant by citation:

• Spouse• Issue• Parents• Brothers and sisters• Remoter relatives• The Crown bona vacantia

Insolvent estates

If the estate is or may be insolvent it must be administered pursuant to the Administration of Insolvent Estates of Deceased Persons Order 1986/1999

• Administration by the representative in accordance with the order

• Administration action• Administration by a trustee in bankruptcy under

insolvency act:• Easier to get order for sale• Set aside rights of surviving joint tenants

Intermeddling

Doing acts pertaining to the administration of the estate without taking a grant.

• Cite the intermeddler to take a grant• Apply for them to be passed over under s. 116 Senior Courts Act

1981

Process of citation

Object of citation is to explain the nature of the interests of the citor and citee(s):• Draft citation and affidavit submitted to Probate

Registry for approval• Clean drafts submitted. Caveat entered• Advertisements lodged• Appearance – grant to citee or s. 116 • Non-appearance – grant to citor

Claims against personal representatives

S. 28 Administration of Estates Act 1925: Claims against representatives by unpaid creditors who have paid away the assets of the estate whether lawfully or otherwise.

S. 27 Trustee Act 1925: Protection of representative by advertisement.

Problem

• £50,000.00 fees due and owing• Property in sole name of the deceased• Mortgage but no HASSASSA charge registered• Son of deceased answering correspondence addressed

to the personal representative• No grant of representation taken

Solutions

• Declare a charge• Register it• Bring proceedings for possession• Application under 19.8(2)(b)(ii) for son to be appointed

as representative• Cite son to take grant

Problem

• £100,000.00 fees due and owing• Property valued at £200,000.00 in joint names of the

deceased and son• HASSASSA charge in form MM registered• Son of deceased answering correspondence addressed

to the personal representative at the property• Daughter of deceased point of contact for Council to

whom bills sent• No grant of representation taken• Daughter challenging assessment of care home

charges

Solution

• Insolvent estate ? Are there any other assets• HASSASSA charge in form MM protects Council’s

interest• Is there a will and, if so, whom does it appoint ?• Cite them both to take a grant