I Inherited A House From.my Parents That I Subsequently Sold.naturally My Esa Stopped.i Suffer From Personality Disorder And Mental Health.if I Have A Deed Of Variation Done And The Money In A Trust Will I Be Able To Claim.esa Able Gain?

[Keither]

The reason being that because of my border line personality disorder I take foolish risks with money,and have spending sprees.I also suffer from.depression and acute anxiety.Furthermore,my psychiatrist is currently assessing whether my growing memory loss problem may be a sign of early onset dementia.I want 2 trusted people to be trustees for the inheritance.
Would the DWP accept this or would it be regarded as deprivation of capital?

[bednobs]

if it is possible, then surely your trustees could just pay you from the inheritance pot, therefore your risk with money would be lessened

[murraymints]

all financial assets are considered for income related ESA ...whether that be in a trust or not, you will still be receiving payments from it

[donny48]

Good afternoon Minty XXOOXX.

[murraymints]

helloooo Donny XX..OO..XX..

[Buenchico]

I can't see how you can have a deed of variation put in place, in terms of how the deceased person's estate is/was distributed, AFTER you've ALREADY accepted ownership of the property and then sold it. I used to write wills for a living and it just doesn't 'add up' to me.

[woofgang]

I suspect that either way, while you continue to be mentally competent, you won't be able to claim ESA. If the money remains for your use then it will be taken into account and if it doesn't remain for your use, then it will be held as deliberate disinvestment.

[themas]

You say you inherited the house and then sold it. I assume you received the proceeds of the sale & it is that money which you want to put into a trust.

I do not think a deed of variation of a Will or an Intestacy can be done retrospectively. If I am right (& you could check this with the solicitor who dealt with the probate) it is too late for you to do a deed of variation to put the money into a trust. However, there are other ways of putting money into a trust but you would need legal advice as the subject is complex. Also the cost of setting up a trust can be considerable.

Whether you can use the deed of variation route or not, it is very likely that DWP will treat putting the money into a trust as deprivation of capital. They will also treat as deprivation use of it in “spending sprees”. From that point of view, it could help you (as I think you realise) if the money was in a discretionary trust and the trustees released it to you in small regular amounts so that you could (when the funds are nearly used up) demonstrate to DWP that it has been used responsibly on your reasonable living costs. If you reach that situation they should then restore your ESA, if you still qualify for it on other grounds.

You need advice from an experienced Welfare Benefits Adviser ro see whether there is any basis on which DWP might be persuaded to restore your ESA earlier. Free services are available from your local Citizens Advice Bureau and, in some areas, the local authority.

[murraymints]

ALL financial assets are considered for means tested benefits, reasonable living costs are neither here nor there....it is one pot... anything over £6k will affect benefits on a sliding scale up to £16k when you lose entitlement

[Barmaid]

You can do a retrospective DoV as long as it is within 2 years of death. I cannot say whether it is possible in these circumstances because the devil is in the detail.

It is likely to be regarded as a deprivation of capital tho. However, it really rather depends on whether you are on means tested benefits. I should take some advice from a good private client solicitor.

[Keither]

The solicitor I've consulted says she has never had problems before getting the DWP to agree,but each situation is discrete.You are right it is expensive to set it up, £750.
A deed of variation can be retrospective.I know that if compensation is given,an arms length trust with 2 responsible trustees can be set up and rhe benefits retained.Woukd this be the case if I developed dementia,in which I would lose mental competence?

[bednobs]

if you have legal advice for which you are paying, why consult randoms on an internet site?

[woofgang]

mental competence issues may change the kind of benefits that can be claimed on behalf of the person but doesn't affect the amount of money that you can have and still receive benefits.....either you have access to the money, albeit that the access has certain controls put on it; or you don't have access to the money, in which case you will have deliberately deprived yourself of it.

[themas]

The sort of trust you mention in relation to compensation is normally set up at the point when the compensation is to be paid out, so the money never goes direct to the person being compensated - it goes straight into the trust. That is different from the situation you are in now & I'm not at all sure that DWP would accept a retrospective variation to put the money into a trust.

The dementia situation is different. If you have not set up lasting power of attorney while mentally competent then the Court of Protection has to be involved & appoints someone to deal with your financial affairs. It is possible the appointee (or the attorney) could put your money into a trust but again I'm far from sure DWP would accept it.