Family Care Payments

Family Care Payments are a mechanism that allow the family members of P (the person lacking mental capacity to make decisions about their financial arrangements) to be compensated for the voluntary care and support that they provide to P. This is sometimes referred to as “gratuitous care”. Family Care Payments are usually arranged and administered by a Deputy for Property and Financial Affairs, appointed by the Court of Protection (CoP). Some Attorneys also choose to set up Family Care Payments.

The Deputy can make a best interest decision to arrange a Family Care Payment to P’s family member where:

• The family care is reasonably required to meet P’s needs, and is actually provided
• There is no contractual relationship between P and the family member providing the support:
• The family member is providing care and support due to their natural love and affection for P
• The care and support provided is informal in nature; the family member does not have a specific job description, formally agreed hours, breaks or holidays
• That there is little or no demarcation of work between the family members who deliver the care
• No one is responsible for securing contractual terms of service delivery.

If more formal care arrangements are in place, this may mean that the family member is technically being directly employed as a carer and would be entitled to statutory and contractual employment rights, such as holiday pay, sick pay and pension contributions. In these circumstances a Family Care Payment is not appropriate and the family member may need advice about their rights and options.

Family Care Payments can be invaluable to a family member who is providing informal care, particularly where they have stopped work, or reduced their working hours, as a result of caring responsibilities.  Family Care Payments are not classed as a salary and tax does not need to be paid on them.

A Deputy for Property and Finance who is considering a Family Care Payment must consider two important factors:

• Whether the proposed Family Care Payment is in P’s best interests
• If any conflict arises with the Deputy’s duty not to take advantage of their position.

The Office of the Public Guardian’s updated guidance differs depending on whether the Deputy is a professional who is paid to act for P, or a lay Deputy, who is usually a family member of P and is not paid for their Deputy role.

Family Care Payment Guidance for Lay Deputies

Where a lay Deputy is receiving payment for the care they are providing to P, they must seek authority from the Court of Protection (CoP) to avoid any potential conflict of interest. This is because the Deputy has a duty not to take advantage of their position as Deputy, and paying themselves might be perceived as doing so. It is also sensible for the lay Deputy to seek authority from the CoP if they propose to make a Family Care Payment to someone they are closely connected to, such as another relative, partner, or a friend. The lay Deputy will ideally seek authority from the CoP before they start making any Family Care Payments, but it may be possible to secure retrospective authority in some cases.

Family Care Payment Guidance for Professional Deputies

Professional Deputies have authority to make decisions about Family Care Payments under the powers granted to them by their CoP Deputy appointment order, provided that they are satisfied that the proposed payment is in P’s best interests.

However, where an agreement cannot be reached about the amount of payment, or if there is a dispute within P’s family about the fact or extent of the proposed Family Care Payment, then best practice would be for the Professional Deputy to apply to the CoP for specific approval of the proposed arrangements.

Family Care Payment Guidance for Attorneys

The OPG Guidance does not apply directly to Attorneys, but Attorneys may find the “factors to consider” section valuable.

How Our Court of Protection and Community Care Law Team Can Help

Deputies must always ensure that a decision regarding Family Care Payments is in the best interests of P. This includes the calculation of the amount of the payment, which must be affordable, sustainable, and reasonable in relation to P’s wider financial circumstances and the amount of care provided. A reduced payment may be appropriate if the family member is living with P and not paying the household outgoings. Deputies must ensure that they are following the guidance from the Office of the Public Guardian and that they apply to the CoP to make decisions when necessary.

Our expert Court of Protection and Community Care Law team can advise on how best to approach Family Care Payments, including the calculations; and have extensive experience of Court of Protection applications on behalf of Lay and Professional Deputies for authority confirming that the arrangements are in P’s best interests

For expert advice on Family Care Payments, contact our Court of Protection and Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.