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Son putting elderly dad under pressure to sign over land


My husband and I are in our 80s. He inherited land from his sister. It is in his name. Our son is putting pressure on his 87-year-old father to hand over the land, which is about 10 acres of prime land.We have no security only the house we live in.

Have I, as his wife, any right to have my name on the deeds? All we want is security in the event of nursing-home care. All will be theirs when we pass on.

I read your article in The Irish Times and it’s scary what can happen in families. When does one apply for the Fair Deal? We are both in good health.

Ms JI, email

It is scary what can happen in families and it is deeply distressing to see older people – already more vulnerable – being put under pressure to hand over assets they may yet require.

As you get older, concern about financial wellbeing becomes more acute. Retirement means, for most people, a coming to terms with the reality that you can no longer earn a living. This can be deeply unsettling and, in my experience, it is something that younger people – even family members – with the best will in the world simply don’t understand.

At the same time, we become physically more frail and, even where still healthy like you and your husband, the prospect of requiring care at some time in the future looms ever larger – as does finding the wherewithal to finance it.

Some Irish people seem to view inheritance as a right: it’s not. The priority for any person or couple must be to provide for themselves, including raising any family they have. Only after all that is done and, if there are assets left over, does inheritance enter the equation.

And once children are reared, they have no further reasonable claim. It is their time to stand on their own financial feet and provide for themselves and their own families.

Handing over assets before you die is even more tricky because, as you say, you need to ensure you provide for yourselves in old age.

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Pressure

You’re clearly concerned about the pressure your son is putting on his father, and rightly so. But do you have any automatic right to have your name added to the deeds of assets he acquired in his name?

I’m afraid not. There is no provision in Irish law to force one part of a couple to add the names of their spouse or partner to any deeds of ownership.

Having said that, there is nothing to prevent a spouse transferring an asset into joint names. And it is encouraged, not least in the decision not to charge stamp duty on transfers of property between spouses. But, if your husband is not happy to do so for whatever reason, you cannot force him to add your name to the deeds.

Only in court-adjudicated separation or divorce can proper provision rules see assets forcibly transferred within a couple and clearly that is not an issue here. In fact, from your letter, it appears that you and your husband share a concern about the pressure being put on to transfer this land to the son.

You can make sure each of you is provided for by (a) resisting this pressure and, if it tips over into elder abuse, reporting it, and (b) wording your wills to ensure that assets are transferred to each other in the first instance and then on to your children, as planned, only when both of you have died.

Fair Deal

You make it clear that your primary concern is financial security in the event that either or both of you and your husband need care – at home or in a nursing home – in the future.

This is absolutely understandable. You also reference Fair Deal and, strangely perhaps, this is the one thing that might explain your son’s move to transfer the land into his name – but I think he is wasting his time.

Fair Deal is a system that subsidises the cost of nursing home care. Once you are accepted as needing long-term care, an assessment of financial ability to pay is made.

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This sets down that 80 per cent of your family income from all sources goes to meet the cost – or half that in the case of a couple where one person needs the care.

In addition, you are charged 7.5 per cent per annum on the value of your savings or assets. Again, with a couple, the figure for each spouse is half this as long as you are both alive.

In the case of the family home, the 7.5 per cent annual charge is levied for only three years, regardless of how much longer you are in care, and can be deferred until both of you have died and the home becomes available to sell – or the outstanding nursing-home loan bill otherwise paid.

The issue here, of course, is that the 10 acres will not be covered as part of the family home and will be tapped for the 7.5 per cent (or 3.75 per cent) annual charge for as long as care is needed.

Your son may be trying to sidestep that charge – which could ultimately see the land sold entirely to meet the bill. However, he should know that any transfers made in the five years before a Fair Deal application will be taken back into consideration in a Fair Deal assessment of assets. Given your husband is 87, a lot can happen in five years, healthwise.

When do you apply for the scheme? When you need it, really. What you can do ahead if time is try to identify homes you feel would be appropriate –bearing in in mind your top choice might not have space – and gather your financial details so that there is no delay in making an application.

Power of attorney

I very strongly suggest you and your husband also consider drawing up an enduring power of attorney – appointing someone to make personal and financial decision for each of you, should you be unable to do so for yourselves, including navigating the Fair Deal process, if required.

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It is a very simple exercise and in a situation where you are already uncomfortable at the pressure being exerted on your husband by your son, it is important that you have someone you trust in your corner should you need it.

Do not put this off. You can only draw up such a power of attorney when both your doctor and your lawyer are happy that you understand what you are doing and have the mental capacity to do so.

If you already have such a document in place and your son is the attorney, consider replacing it with a new one.

Of course, if you are talking about care in your own home, Fair Deal does not come into it. In that case, you are relying on care hours being provided by HSE public health.

They are, in my experience, an outstanding bunch but there is huge pressure on resources. It is very likely that you will not be able to secure all the hours of care that you might need and, in any case, there would be a delay while care is assessed.

While assets don’t affect a decision on public health care hours, you may need to tap your own financial resources to meet the cost of additional hours required to to fund any gap until care becomes available. And that’s why you and your husband need to hold on to your assets. That land could be your financial lifeline in those circumstances.

Could you hand the land over with a commitment that your son would pay such costs as they arise? You could – and he could even claim tax relief on it – but it would want to be a watertight legal agreement, not just some informal understanding.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into



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