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Our specialist Court of Protection team can advise on Family care payments
Our lawyers have extensive experience and expertise in providing advice and representation for applications for gratuitous care payments (also called family care payments).
In many cases, a person who is appointed as a deputy also provides care to the person they are acting for. Care can take many forms. It may include help with toileting or transfers, meal preparation, supervising a person in the kitchen or on the stairs or in any number of other ways. In many cases, relatives or friends devote sometimes significant amounts of their time to care for their loved one.
Where there is no formal commercial arrangement in place to employ family members as carers, the care is referred to as gratuitous care (‘gratuitous’, in this sense, means ‘without charge’, rather than ‘unnecessary’ or ‘uncalled for’). Gratuitous, or non-commercial care is distinct from an arrangement where a carer is supplied by an agency, or is directly employed under a formal contract of employment. Perhaps counterintuitively, ‘gratuitous care’ may actually be paid for.
For a long time now, courts dealing with serious injury or clinical negligence claims have made awards to reflect the time given by family members in caring for their relative on a non-commercial basis. The usual formula applied is to take commercial care rates as a starting point and then to reduce this by a percentage to reflect the fact that costs such as income tax and National Insurance contributions don’t arise.
The Court of Protection adopts a similar approach and, subject to various safeguards discussed below, will usually be happy to authorise the deputy to make or receive payments to reflect the care that they provide.
Where the person providing the care is the deputy, they are not able to decide for themselves whether they should be paid, or how much. Authority is required from the Court of Protection to allow a deputy to pay themselves for any care that they provide. This requirement acts as a safeguard to ensure that ‘P’ (the court’s term for a person who lacks mental capacity) is not being taken advantage of and that the arrangements are appropriate for them. It also acts as an important safeguard for the deputy’s protection as well.
A lay deputy should also seek court approval if they are paying someone they are closely connected to – for example, a spouse or child – where the decision to pay may be influenced (or able to be perceived as being influenced) by the close relationship, rather than objectively made in the best interests of P.
When an application is made to authorise payments for gratuitous care, the Court of Protection will consider several factors. The first and most important of these is what is in P’s ‘best interests’? The factors that would need to be considered in order to make a best interests decision will vary according to the circumstances unique to each case.
There is no ‘one size fits all’ approach, and so it is not possible to offer a definitive guide here to the precise nature of the evidence that would be required in any particular case. As a starting point however, the Court of Protection will certainly want to consider P’s wider financial situation in order to understand whether the proposed arrangements are affordable. If P is able to express their own wishes and feelings, the Court will want to know what those wishes are.
Ideally, the Court’s authority should be sought before any payments are taken. It is always preferable to seek permission before, rather than after the payment arrangements are put in place. However, the Court of Protection is used to dealing with applications for retrospective approval of past arrangements that haven’t previously been approved by the Court, or in cases where the Court has previously approved one set of arrangements, but where they have changed (perhaps because care needs have increased) since the Court last considered them.
The Office of the Public Guardian (OPG) supervises all deputies. Many Court applications made by deputies seeking retrospective authority arise because the OPG learns of unauthorised gratuitous care payments and directs a deputy to make the application. If you are a deputy and you receive payments from P’s estate for the care you provide, but you do not currently have the Court’s approval for this arrangement, it is vital that an application is made. This is the case even if the OPG has not alerted you to this need.
Price Slater Gawne is experienced in applications of this nature and are well placed to provide advice and representation to lay deputies who need the Court’s authority either prospectively, or retrospectively.
If this is an issue in your deputyship, we would be very happy to discuss your case with you, without any obligation on your part.
Contact the team today to discuss your Court of Protection enquiry on 03333 058375 or email firstname.lastname@example.org
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