Posted on 24th May 2016
It is becoming more and more common for family members to provide informal care for those who lack mental capacity. This can be anything from cooking meals, washing, hoisting and being a companion to nursing care and physiotherapy. In some cases this care is provided without any expectation of payment, but more often than not a family member will have to dedicate a large portion of the day to caring and sometimes even give up their own job to provide care. These types of arrangement are often informal and rarely have a contract. It is considered that payments to enable this type of care are generally in the client’s best interests.
As with all decisions made by a deputy, the decision to pay a family member must be in the client’s best interests and sections 1-4 of the Mental Health Act must also be considered.
Where the deputy is a professional, the OPG considers that, as long as there is evidence that the guidelines have been considered, there is no need to make an application to the Court for permission to make payment. However, where a lay deputy (or someone closely connected to them) is providing care and taking payments, it is advisable for them to obtain authority from the Court to avoid a breach of their duties.
The Office of the Public Guardian (OPG) has set out guidelines as to how informal family carers should be paid. If a contract is in place, the guidance from the OPG does not apply.
Finally, HMRC usually regards payments to family members for care as voluntary payments and therefore they are exempt from tax. However, authority should be obtained from HMRC before payments are made. Where authority is not obtained the family member may need to be directly employed.
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