Court of Protection – gratuitous care payments

Gratuitous care or family care payments are payments made by deputies to family members who provide care to someone lacking the capacity to manage their own property and financial affairs (known as ‘P’). A family care payment is for care above the usual level that they might be expected to give.

For disabled children, the level of additional care given by family members usually increases as the child gets older. For example, a 14 year old child might be expected to be able to get themselves up in the morning, get dressed, brush their teeth, and walk to school, but for many disabled children, this is not possible without a great deal of support from their family.

When can family care payments be made?

A deputy or attorney can make a best interests decision to pay a family care payment. The Office of the Public Guardian (OPG) has set out the following requirements which must be satisfied for this to happen:

• the family member is not employed by P;
• the family member is providing the care to P because of their love and affection for them;
• the arrangement is informal and not specified by way of employment contract or job specification;
• the family member does not get any employment rights such as paid time off.

How to calculate a family care payment

One of the simplest ways to calculate a family care payment is to commission a short report from a professional, setting out the hours of care provided above what might usually be expected, as well as confirming that the care meets P’s needs.

The deputy can then consider the average rates of pay for comparable commercial care in that area and calculate an appropriate payment amount. The deputy will need to consider a reduction to the payment to take into account that it is not taxable, as well as any other factors that might impact the payment. These factors might include whether P is receiving commercial care, or if the person receiving the payment is living in P’s property.

The deputy must also consider affordability and sustainability, and ultimately ensure that any payments are in P’s best interests.

Important points a deputy should consider

There are some important points a deputy will want to consider when deciding whether a family care payment is in P’s best interests:

• what P’s wishes and feelings are, and the views of anyone else that might have a reasonable interest in the decision;
• whether there is a conflict of interest in making the payment. Should a deputy want to make a family care payment to themselves or a spouse, they would need to make an application to the Court of Protection for authority;
• the family care payment is a payment made from P’s funds for care provided to them, but it is not intended to replace a salary;
• family care payments are not usually subject to tax and the recipient can write to HMRC to confirm this. If the recipient is receiving benefits, they should declare the income to the DWP, but make it clear the payments are voluntary and gratuitous in nature, which means they can reduce or stop at any time;
• the OPG expects that a deputy will regularly review family care payments and will often ask a deputy for evidence on how the payment has been calculated.

In summary, gratuitous care or family care payments are informal payments made to family members providing care to P. The OPG has guidance on how they should be calculated; it is essential that any payments are affordable, sustainable, and in P’s best interests.

Our Court of Protection team can assist by advising deputies on the process for calculating any payments, and can support with and prepare an application to the court if needed.

This article was written by Alex Edwards, associate in the Court of Protection team.