Can my solicitor help me stay in my own home?

Recently, well-known actors such as Helen Mirren and Piers Brosnan have been appearing in films and television series within the genre known as ‘Senior Adventure’ or ‘Elder Action’. These stories often focus on retirees or older people living in retirement villages or care homes, solving crimes or embarking on road trips - such as The Great Escaper, in which Michael Caine's character leaves his nursing home to attend the 70th anniversary of the D-Day landings in France.

Reality is, usually, rather less glamorous. When planning for later life, many of our clients are concerned about maintaining their independence for as long as possible and avoiding the need to move into residential care – particularly where they have the means to fund care in their own home.

One of the questions we are often asked is whether we can help clients remain living in their own home for as long as possible. Whilst no solicitor can guarantee future care arrangements, careful legal and practical planning can significantly improve the likelihood of your wishes being respected should you need care later in life.

In this blog, we outline some of the key issues to consider.

Financial preparation and care planning considerations

Remaining at home later in life often requires both financial and practical planning.

Even if you expect to pay for your own care, it is sensible to consider how carers will be arranged, whether your home may require adaptations, and how ongoing household and medical costs will be met. Planning ahead can make it easier to remain independent and reduce the need for rushed decisions if your health changes unexpectedly.

Informal family arrangements

Many people initially rely on informal family arrangements. An adult child or other relative may agree to move into your home or provide care so that you can continue living independently. Whilst these arrangements can work well, circumstances can change and they are not always sustainable.

It is important to be careful about promises made in return for that care, and the implications on other children.  For example, a person might say that a child (or carer) will ‘inherit the house one day’ if they give up work or move in to provide care. If the child relies on that promise to their detriment (such as giving up their job), a dispute can arise after the parent's death if expectations are not fulfilled under the Will.  In some cases, the courts may be asked to decide whether the promise should be honoured under a legal principle known as ‘proprietary estoppel’. Careful planning and properly documenting your intentions can help reduce the risk of this dispute arising.

Appointing attorneys

A Health and Welfare Lasting Power of Attorney (LPA) allows you to record your wishes about where and how you would like to be cared for if you lose capacity. If remaining in your own home is particularly important to you, this can be made clear within the document.

A Property and Financial Affairs LPA allows your attorneys to manage your finances, property and practical affairs, helping to ensure that care can continue to be funded and organised without unnecessary delay.

Clients also ask whether these wishes should be included in their Will. A Will takes effect on death and is designed to deal with what happens to your estate after you die, rather than decisions made during your lifetime. Whilst it can form part of your wider estate planning, your wishes about future care and living arrangements are usually better recorded in a Health and Welfare LPA.

Choosing the right attorney

Choosing the right attorney is one of the most important decisions you will make.

You should appoint individuals who understand your wishes, who will advocate for your preferences and are capable of managing the responsibilities involved. In some situations, particularly where family circumstances are complex, appointing a professional attorney may also be appropriate.

A letter of wishes

Your Health and Welfare LPA allows you to include wishes and preferences about your future care and living arrangements.

Many people also prepare a separate letter of wishes, giving more detailed guidance about the type of care they would like, when they would wish to remain at home and any circumstances in which residential care would be acceptable. Although not legally binding, this guidance can be invaluable to attorneys and family members if difficult decisions arise.

Gifting property

Some people consider transferring ownership of their home to a child during their lifetime, whether as part of tax planning or in the hope of protecting the property from future care fees, while intending to continue living there. However, this is a complex area and can have significant legal, tax and practical consequences. If the transfer is made to avoid care costs, a local authority may treat it as a deliberate deprivation of assets and still assess the individual as if they owned the property. Equally, continuing to live in the property after giving it away may have inheritance tax implications, and in some circumstances the parent may need to pay a full market rent if a tax advantage is to be achieved. The property may also become vulnerable to the child's personal circumstances, such as divorce, bankruptcy or creditor claims. Specialist legal and tax advice should always be obtained before transferring ownership of your home to ensure the arrangement supports, rather than jeopardises, your long-term plans.

Other practical considerations include whether your home is suitable for long-term care, the affordability of ongoing support and whether family members are realistically able to assist.

Can I insist that my money is used to pay for professional care?

If you have the resources to fund professional care, remaining at home is often a realistic option, provided appropriate care can be arranged and maintained.

However, funding alone is not enough. Organising carers, adapting your home and managing changing care needs are tasks that require careful planning and supervision to ensure support remains consistent and effective over time.

A Property and Financial Affairs LPA can help by giving your attorneys the authority to use your funds to pay for carers, adapt your home and meet the ongoing costs of care if you are no longer able to manage your own finances. You can also include preferences or guidance expressing your wish to remain at home for as long as possible and that, where your finances allow, your money should be used to fund professional care to support that objective. Whilst your attorneys must always act in your best interests, setting out your wishes in advance can provide valuable guidance and help ensure decisions are made in line with your preferences.

What if I am ill and have my mental capacity?

If you become physically unwell and retain mental capacity, you will usually continue to make your own decisions about your care, finances and where you live.

This means you can choose to remain at home with professional or family support, provided this remains a safe and practical option. Planning ahead whilst you are still able to make your own decisions can make those arrangements much easier to implement if your health deteriorates.

What if I lose my mental capacity?

If you lose mental capacity, your attorneys appointed under your LPAs can step in to make decisions on your behalf. A Property and Financial Affairs LPA enables your attorneys to manage your finances, pay for care, maintain your home and deal with day-to-day financial matters. A Health and Welfare LPA allows your attorneys to make decisions about your care and living arrangements, including working with healthcare professionals to help ensure your wishes and best interests remain at the centre of any decisions.

Can attorneys go against your wishes?

Attorneys must always act in your best interests. In doing so, they are required to take your wishes, feelings and preferences into account.

Whilst your attorneys cannot simply ignore what you have said, circumstances may change. If remaining at home is no longer affordable or safe, they may have to balance your previously expressed wishes against your current care needs and remaining financial resources.

This makes it particularly important to record your preferences as clearly as possible.

How we can help

Our Private Client legal advisers regularly advise clients on later-life planning and can help put the legal arrangements in place to maximise independence, dignity and peace of mind.

We can assist by:

• preparing health and welfare and property and financial affairs lasting powers of attorney;
• helping record your wishes about future care and living arrangements;
• reviewing your wider estate planning, including your Will;
• advising on the implications of gifting property and care fee planning; and
• helping you put practical and legal arrangements in place to maximise the likelihood of remaining in your own home for as long as possible.

For advice on lasting powers of attorney or later-life planning, please contact our private client team at one of our offices – York, Selby, Malton or Pickering.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.