Family care payments and deputies

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.

• The care must be reasonably required and of a good standard. Where there has been litigation, the level of care recommended by the experts should be considered.
• The payments must be affordable and should take into account, the client’s resources, age and life expectancy.
• There should be evidence as to how the calculations were achieved.
• Generally the payments should be less expensive than if a professional carer had been employed.
• Payments must take into account any other contributions that the client makes towards the family home, such as payment of bills or if the carer is living rent free.
• Other family members should be consulted where necessary.
• Payments should be index linked to avoid repeat calculations.
• The deputy should keep a record of the payments made.
• The level of care should be reviewed sporadically.

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.