A deputy is appointed to manage the financial affairs of a person who lacks mental capacity. In many cases, the incapacitated person needs support and care and this care is often provided by family members.
Family carers may struggle financially because they are no longer able to go out to work. If they ask the deputy for financial assistance, the deputy must decide if it is appropriate to pay the family members for the care they provide.
If the deputy is not a professional person, the deputy will have to make an application to the Court of Protection for approval of any payments to family members for their care. This is because a deputy, like a trustee, cannot personally benefit from their role as deputy. They cannot decide to pay money from the deputyship funds to themselves or people close to them such as their spouse or children.
If the deputy is a professional, they can decide to make payments to family members for care without needing court approval. The deputy must show that they have considered all the issues as required by the Mental Capacity Act and that they have calculated the care payments in accordance with relevant case law and guidance from the Office of the Public Guardian.
If the professional deputy is appointed jointly with a lay deputy, a court application for approval of the payments will be necessary.
Factors to be considered
Any payments made to family members for care must be in the client’s best interests. The following factors are relevant when a deputy is considering this issue:
- The care must meet the client’s needs and be of a good standard;
- Payments should be at a reasonable level. The usual approach is to work out the hours of additional care and then pay the going market rate for professional carers in the local area less 20% to allow for notional tax and national insurance. Payments to family members should always cost less than payments for professional carers. Payments should not be calculated at the level of the carer’s previous earnings.
- The care payments must be affordable and sustainable taking into account the client’s resources, age and life expectancy.
- Payments should take into account other benefits that the family have such as living rent or mortgage free or receiving Carer’s allowance.
- If the client is a child, you must discount the level of parental care that the child would have required in any event. You must only pay family members for the additional care arising from the child’s disability.
At Hodge Jones & Allen we have been appointed as professional deputy for over 60 clients. We have a specialist team who deal with all aspects of property and affairs deputyships.