With the cost of Nursing Home Fees spiralling and the demand for spaces growing the Fair Deal Scheme has become familiar vocabulary for many of us. The scheme allows for someone with long term Nursing Home care needs to be assessed in order to determine what contribution they can make towards the cost of the Nursing Home and the state will pay the balance. The scheme was originally introduced in 2009 however the Nursing Home Support Scheme (Amendment) Act 2021 (“the 2021 Act”) brought about some change to the operation of the scheme when it came into force on the 21st October 2021.

The 2021 Act now allows for an individual’s principal residence to be sold and while they are still required to pay the 22.5% capped loan (7.5% per year for 3 years) the balance proceeds of the sale will not be deemed to be a cash asset in reassessing the means of a person receiving long term residential care. It is believed that the change was introduced by government to encourage the sale of vacant properties rather than the rental of them. However changes in Budget 2023 now allow applicants to have any rental income from their principal residence accessed at 40% of the total rent rather than 80% as was previously the case. This measure is hoped to bring more vacant properties into the rental market. The HSE will however require that the tenancy be registered with the Residential Tenancies Board and any rental agreements produced.

There was also a change brought in with regard to the way the family farm or business was to be dealt with, which means that the value of the family farm or business will no longer be taken into consideration after a period of 3 years providing specified criteria are met. This will require the applicant with the care needs submitting a statutory declaration that for a period of 3 out of the previous 5 years that the family successor was regularly and consistently applied to the running of the family asset. It is no longer enough to say that they meet the definition of family successor. The definition of family successor can be seen on the HSE website.

The family successor must then also swear by statutory declaration that a substantial part of their normal working time will be applied regularly and consistently to the running of the family asset for a period of 6 years beginning on the date of their appointment. The HSE have the power to conduct interviews and to request, receive and consider records and information in respect of the provision of financial support. There may obviously be an issue in circumstances where there is a lack of capacity on the part of the applicant in completing the Statutory Declaration and it may be required to obtain a doctors certificate to confirm this. A specified person as defined by the 2009 Act will in those circumstances be required to assist in the application for the Fair Deal Scheme, however it is worth noting that the nursing home loan can only be applied for when the following specified persons have been appointed:

  • A Care Representative (appointed by the Circuit Court)
  • A Ward of Court
  • An appointed Attorney by virtue of a registered Enduring Power of Attorney

It is also worth noting that more change will be on the way as the Assisted Decision Making Bill is expected to be brought into law early in 2023 and this will have implications for the appointment of specified persons. In particular there will no longer be the appointment of Wards of Court and or individuals appointed Care Representatives. However the nature of the change is unclear yet.

The 2021 Act did not make any change to the definition of “transferred asset” and this is still an interest of the applicant in an asset (whether cash or real property) which has been transferred at any time in the period of 5 years prior to the date on which the application for state support is first made and which transfer is made for:

  • Voluntary Transfer (no consideration)
  • Nominal consideration
  • Consideration which is less than 75% of the estimated market value of the interest of the person in the asset at the time of the transfer

It is important that all assets are correctly valued and declared in the application process as Legal Personal Representatives in the estate of a deceased person are obliged to submit to the HSE a copy of the schedule of assets at least 3 months before the estate is distributed and the estate cannot be distributed until clearance is received confirming that there are no monies due in respect of the Nursing Home Support Scheme.

Ciara McLoughlin, Solicitor

 Should you require any further information in relation to the above mentioned or wish to make an appointment to attend please do not hesitate to contact us on 071 91 62211 or info@carteranhold.ie.