Can P’s Money Be Used to Pay a Family Member for Care?
Family members often provide substantial care to a relative who lacks capacity. That care may include supervision, personal care, transport, managing appointments, preparing meals or simply being available throughout the day and night.
A common question for Property and Affairs deputies is whether P’s money can be used to recognise and remunerate that care.
The answer is: sometimes – but it needs careful consideration
What is a family care payment?
The Office of the Public Guardian (OPG) refers to these arrangements as family care payments, sometimes called “gratuitous care payments”.
These payments are usually relevant where a relative or friend is caring for P informally because of their personal relationship, rather than because they are employed under a formal care arrangement.
The fact that the care is provided by a family member does not mean it has no financial value. In some cases, paying a family carer may be entirely appropriate and in P’s best interests, particularly where the alternative would be more expensive professional care.
What should a deputy consider?
A deputy cannot simply decide that a particular amount “feels fair”. The payment must be justified by reference to P’s circumstances.
Relevant considerations include:
- whether the care is genuinely required to meet P’s needs;
- the amount and nature of the care actually being provided;
- whether the care is of an appropriate standard;
- P’s income, capital, age and anticipated future needs;
- whether professional care is already being provided;
- whether the proposed payment represents a saving compared with professional care; and
- whether the family carer receives other financial benefits from P, such as living rent-free in P’s property.
Most significantly, the payments should also remain affordable over the longer term. A payment which appears manageable today may not be appropriate if it considerably reduces funds that P is likely to need for future care.
Does the Court of Protection need to approve the payment?
This depends partly on who is making and receiving the payment.
Professional deputies will usually be able to authorise appropriate family care payments under their general authority, provided they can demonstrate proper best-interests decision-making.
The position is more difficult for lay deputies. Where a lay deputy is personally providing the care and paying themselves from P’s funds, the Office of the Public Guardian expects them to seek approval from the Court of Protection because of the obvious conflict of interest.
Court approval may also be required where the deputy proposes paying someone closely connected to them, such as their spouse or child.
Keep a clear record
Deputies should keep written records showing how the decision was reached and how the amount was calculated.
Payments will also be recorded in the deputy’s annual report, including information about who provided the care, the amount of care provided and the rate used.
Importantly, the arrangement should not simply continue indefinitely without review. Changes in P’s health, their care package, living arrangements or finances may mean that the payment should increase, reduce or stop altogether.
The key point
Family care payments can be entirely legitimate, but deputies must remember that they are managing P’s money for P’s benefit.
Where there is a potential conflict of interest, uncertainty over the appropriate amount, disagreement within the family or a significant proposed payment, obtaining specialist advice – and, where necessary, authority from the Court of Protection – can protect both P and the deputy.
Hodge Jones & Allen Solicitors Court of Protection Department can advise and make the appropriate applications for approval. If you would like to speak to one of our solicitors today, call us on 0330 822 3451 or request a callback.