This is a question people ask quietly, often about a parent, and usually after somebody at a family gathering mentioned a trust. It deserves a straight answer rather than either a sales pitch or a lecture, so here is the shape of it: some of what you can do is legitimate and effective, some of it does nothing at all, and one popular arrangement is actively counterproductive. Telling them apart requires knowing the Scottish rules, which differ from the English ones on almost every point that matters.

Start with what you would actually pay

Scotland has free personal and nursing care, and it is worth considerably less than the name suggests.

Under the Community Care and Health (Scotland) Act 2002, a council does not charge for the personal care element of your care. Since 1st April 2019 this has applied to adults of any age rather than only those over sixty-five, following the change known as Frank’s Law. From 1st April 2026 the payments are £260.30 a week for personal care and £117.10 a week for nursing care, so £377.40 where both apply.

Set that against the cost. The interim National Care Home Contract standard rates for 2026 to 2027 are £930.45 a week for residential care and £1,074.13 a week for nursing care, and many homes charge private residents more than that. The free personal care payment is a contribution towards the care element. It does not touch accommodation, food, heating or laundry, and those are the bulk of the bill. Anybody who has read “free personal care” as “free care home” has been badly misled.

The means test, and why the Scottish figures matter

Whether you pay for the accommodation element depends on a financial assessment carried out by the council. From 6th April 2026 the upper capital limit is £36,750 and the lower capital limit is £22,750.

Above the upper limit you meet the full cost, less the free personal and nursing care payments. Below the lower limit your capital is ignored altogether and you contribute from income only. Between the two you are treated as having a tariff income of one pound a week for every two hundred and fifty pounds, or part of two hundred and fifty pounds, of capital above the lower limit.

Those Scottish figures are substantially more generous than the English ones, which sit at £23,250 and £14,250, and unlike the English limits they are uprated every April. A Scottish family using English figures will conclude they must self-fund when they may not have to. That single error probably costs more Scottish households money than every trust scheme put together.

You keep a personal expenses allowance of £37.65 a week from 6th April 2026, and if you are sixty-five or over with qualifying income there is a savings disregard on top of it, currently £8.95 a week for a single resident and £13.25 for a couple.

When the house counts, and when it does not

The house is capital, and it is valued at what a willing buyer would pay a willing seller, less ten per cent where there would be expenses of sale, and less any mortgage. But there are real disregards, and they are the first thing to check, because a house that is disregarded does not need protecting from anything.

For the first twelve weeks of a permanent stay the value of the main home is disregarded. This is statutory rather than a matter of practice, though you would not know it from the consolidated regulations: it comes from paragraph 1A of schedule 4 to the 1992 Regulations, inserted for Scotland alone by SSI 2001/138 with effect from 9th April 2001. The twelve weeks run from the day the permanent stay begins, and the disregard falls away if the house is sold inside that period. It is a breathing space, not a solution, and it exists so that families are not forced into a fire sale.

Beyond that, the value of the home is disregarded for as long as it is occupied by any of the following: your spouse, civil partner or partner; a relative aged sixty or over, on which see the note below; a relative who is incapacitated; a child under sixteen whom you are liable to maintain; or a former partner from whom you are estranged or divorced who is a lone parent with a dependent child. Councils also have a discretion to disregard the home in other circumstances, and the example the guidance itself gives is somebody who is not a relative but gave up their own home to care for you before you went in.

If one of those applies, the house is out of the assessment for as long as the occupation continues, and no scheme is needed.

The seven year rule does not exist

This is the single most widespread and most damaging misunderstanding in the whole subject, so it is worth being blunt about it.

So a transfer made twelve years ago is not safe merely because it was made twelve years ago. It may well be safe for other reasons — because of what was going on at the time, and what was foreseeable then — but the passage of time does not itself confer immunity. Care Information Scotland states in terms that there are no time limits preventing a council from deciding that you have intentionally deprived yourself of capital, and Scottish councils’ own published guides say that they may consider resources disposed of at any time.

What the council is actually asking

The rule is notional capital. Under regulation 25 of the National Assistance (Assessment of Resources) Regulations 1992, a resident may be treated as still possessing capital of which they have deprived themselves for the purpose of reducing what they must pay for their accommodation. If the council reaches that conclusion, the value goes back into the assessment as though you still had it, and you are charged accordingly on money you no longer hold.

The test is not whether avoiding the charge was your main reason. The published guidance puts it this way: avoiding the charge need not be the resident’s main motive, but it must be a significant one. The two questions that decide most cases are the timing of the transfer and whether it was reasonable, at the time, to foresee needing residential care.

There is no formal burden of proof on either side, and it is worth being precise about this because it is widely misstated. The council looks at the material in front of it and decides whether a purpose of reducing the accommodation charge can be deduced from the circumstances. In Yule, discussed below, the Court of Session said in terms that this is not a matter of onus of proof. In practice, though, the absence of an onus cuts against the resident rather than for them: if you cannot account for where an asset went, the council will assess you as though you still had it.

Examples given of deprivation include transferring the title deeds of a property to somebody else, putting money into a trust that cannot be revoked, giving away a lump sum, spending extravagantly, and converting money into possessions that would otherwise be disregarded.

Yule v South Lanarkshire Council

Scotland has its own authority on this, and it disposes of the arrangement most often suggested.

In March 1995 Mrs Yule granted a disposition of her home to her granddaughter for no consideration, reserving a liferent to herself so that she kept the right to live there for the rest of her life. She entered a nursing home in June 1996. South Lanarkshire Council treated the house as notional capital and refused to fund her. The Court of Session, Inner House, upheld the council on 15th August 2000.

Three points from that decision matter to anybody considering the same step. The transfer was made some fifteen months before she went into care and the council was still entitled to take it into account, because regulation 25 carries no time limit on its face at all. The council did not have to prove her intention; it needed material from which it could reasonably infer that a purpose of the transfer was to avoid the accommodation charge, which the court treated as a question of what could be deduced from the circumstances rather than a question of onus. And Mrs Yule did not need to have known what the capital limit was for that inference to be drawn.

The wider lesson is the one that the popular version of this planning never mentions: a disposition with a reserved liferent, the classic Scottish device for protecting the family home, is exactly what failed. Keeping the right to live in the house is precisely what makes the transfer look like what it is.

Trusts

An irrevocable trust of the family home is not a way round the rules. It is one of the examples the guidance gives of deprivation of capital, which means creating one does not stop the council looking at the transfer — it is one of the standard reasons for looking at it.

The marketing rests on a narrower point that is true as far as it goes: capital held in a discretionary trust to which you have no right of access may not be treated as your capital. What that does not answer is the deprivation analysis of the transfer into the trust, which is the question the council actually asks, and to which there is no look-back period.

The professional literature in Scotland has for many years said the same thing, and the Law Society of Scotland’s own journal has carried it: success cannot be guaranteed, local authorities have a wide discretion, and contemporaneous documentation showing a genuine non-care reason for the arrangement — tax planning, investment, a family business — is essential. That is a fair summary of the professional position, and it is a long way from the confidence of a seminar invitation.

There are also consequences that have nothing to do with the council. Property given away outright is exposed to the recipient’s divorce, bankruptcy and creditors, and cannot be recovered if the relationship changes. Trusts have running costs and tax consequences of their own.

Can the council pursue the person who received the house?

Sometimes, and this is where the six-month period that people half-remember actually belongs.

Section 21 of the Health and Social Services and Social Security Adjudications Act 1983 extends to Scotland. Where a resident knowingly transferred an asset for less than its full value, with the intention of avoiding or reducing the charge, and did so either within six months before entering the accommodation or while resident in it, the council may pursue the person who received the asset for the shortfall, as a debt.

The two routes are entirely separate, and conflating them is what produces the seven year myth in reverse.

So the six months is real, but it limits only the council’s ability to chase your daughter. It does nothing whatever to limit the council’s ability to charge you as though you still owned the house.

The arrangement that is generally accepted to work

There is one piece of planning that is both effective and entirely respectable, and it depends on a feature of Scottish property law that has no English equivalent. It is also more demanding than most descriptions of it admit, and it does less than people hope.

Scotland has no joint tenancy and no tenancy in common. Co-owners hold pro indiviso shares, and Scottish titles very often contain a survivorship destination, which passes the deceased’s share automatically to the survivor outside the will. The effect is that when the first spouse dies, the whole house lands in the survivor’s estate, where it is assessable in full if the survivor later needs care.

The alternative is to evacuate the survivorship destination and to use a liferent will, so that on the first death that spouse’s half share passes into a liferent trust rather than to the survivor. The survivor has the right to live in the house for life but does not own that half share, so it is not their capital.

Two things have to happen, and one of them is not a will. The survivorship destination has to be evacuated, which requires a fresh deed signed by both owners and registered. A will cannot do it on its own. Section 30 of the Succession (Scotland) Act 1964 permits evacuation by a will only where the destination is one that can competently be evacuated that way, and then only where the will refers specifically to the destination and declares an intention to evacuate it. Where the destination has a contractual element, it may not be evacuable by will at all. A liferent will executed over an untouched destination achieves precisely nothing, and the survivorship clause simply overrides it. Anybody who instructs the will and leaves the title alone has spent money and protected nothing.

What makes the arrangement different from everything else on this page is the timing and who acts. It operates on the first death, and it is the deceased deciding where their own share goes. There is no transfer by the survivor of anything the survivor owned, which is why it is not treated as deprivation by the survivor.

English advice about severing a joint tenancy is describing something that does not exist in Scotland, and following it here achieves nothing.

Deferred payments: the option people forget

If the difficulty is not principle but liquidity — the money is in the house and the house has not sold — Scotland has a deferred payment scheme under section 6 of the Community Care and Health (Scotland) Act 2002. The council pays the fees, takes a standard security over the house, and recovers the debt when the property is sold or from the estate.

No interest is charged while the agreement is running. Interest starts to accrue only once it ends: from the date you specify if you bring the agreement to an end yourself, on discharge, or fifty-six days after death, whichever comes first.

Uptake has been very low since the scheme began in 2002. It is also not the same as the English scheme under the Care Act 2014, which is a duty on the council rather than a power and which does charge interest, so English guidance on deferred payments is unreliable here.

If you think the council has got it wrong

Start with the council’s own complaints procedure, which under the Scottish Public Services Ombudsman’s model runs to five working days at the frontline stage and twenty working days for a stage two investigation. If that does not resolve it, the Ombudsman is the next step. Note that the English Local Government and Social Care Ombudsman has published detailed guidance on deprivation of capital which is widely quoted online and which has no jurisdiction in Scotland whatever.

Beyond that there is judicial review in the Court of Session, which under section 27A of the Court of Session Act 1988 must ordinarily be brought within three months, though the court may allow a longer period where it considers that equitable. You also need the court’s permission before a petition can proceed at all, which under section 27B is granted only where you have sufficient interest and the application has a real prospect of success.

Be realistic about what judicial review achieves. Yule establishes that the purpose behind a transfer is a question of fact for the council, and the court will not substitute its own view of the facts. The arguable challenge is that the council had no material from which its inference could reasonably be drawn, or that it ignored evidence of a genuine alternative motive — not that it reached the wrong answer.

What English guidance will get wrong for you

Six things, briefly, because they recur constantly.

The Care Act 2014 is England only and does not apply in Scotland at all. The eighty-six thousand pound cost cap you may have read about was an English proposal that was cancelled in July 2024 and never came into force anywhere, so it is doubly irrelevant here. The capital limits are different and the Scottish ones are higher. Free personal and nursing care exists here and does not exist in England. England replaced the Charging for Residential Accommodation Guidance years ago, whereas the Scottish version of it is still current and is reissued annually, so quoting English paragraph numbers is a visible error. Deferred payments work differently. And the ombudsman is a different body with no power over a Scottish council whatever.

Sources

• Community Care and Health (Scotland) Act 2002, section 1, legislation.gov.uk
• Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2026, legislation.gov.uk — the current personal and nursing care rates
• National Assistance (Assessment of Resources) Amendment (Scotland) Regulations 2026, legislation.gov.uk — the current capital limits
• National Assistance (Assessment of Resources) Regulations 1992, regulation 25, legislation.gov.uk — notional capital
• National Assistance (Assessment of Resources) Amendment (No. 3) (Scotland) Regulations 2001, legislation.gov.uk — the twelve-week property disregard, Scotland only
• Succession (Scotland) Act 1964, section 30, legislation.gov.uk — evacuation of a special destination by will
• Court of Session Act 1988, section 27B, legislation.gov.uk — permission for judicial review
• Pension Age Disability Payment, Social Security Scotland
• Health and Social Services and Social Security Adjudications Act 1983, section 21, legislation.gov.uk
• Community Care (Deferred Payment of Accommodation Costs) (Scotland) Regulations 2002, legislation.gov.uk
• Court of Session Act 1988, section 27A, legislation.gov.uk
• Are there any time limits on deprivation of capital?, Care Information Scotland
• Capital limits, Care Information Scotland
• Standard rates, Care Information Scotland
• Costs of personal and nursing care, mygov.scot
• How to complain about a public service, Scottish Public Services Ombudsman

This page is general information about the law of Scotland and is not advice on your circumstances. Every figure on it is uprated each April and the figures given are those in force for 2026 to 2027. Nothing here should be acted upon as a plan: arrangements intended to protect a house have consequences for tax, for your own security of occupation and for what happens if a relationship breaks down, and they need to be looked at as a whole by somebody who can see the whole picture.