Becoming a Deputy carries a lot of responsibility and The Office of Public Guardian has provided some guidelines regarding family care payments.
Individuals who take on the role of Deputy to a person lacking capacity (usually to a close friend or family member) often fail to fully understand and appreciate the burden, responsibility and duties that fall to them in handling the financial obligations and in particular maintaining accounts and financial records of expenditure.
Such accounts are open to inspection by the Office of the Public Guardian, not only on an annual basis but particularly if a third party should have cause to raise concern over items of expenditure on behalf of the donor.
On 18th May 2016 the Office of the Public Guardian published a practice note on its approach to family care payments that Court of Protection Deputies make to family members who are providing care to someone who lacks mental capacity.
The Guide provides a helpful definition of family care, the legal framework and when Court of Protection authority is required. It highlights factors a Deputy should consider when deciding if payments are in the patient’s best interest and the level of those payments.
Frequently, family members provide a level of informal care such as cooking, laundry, cleaning and companion care. On occasions this can go beyond this to include physiotherapy and nursing skills over lengthy time periods and many do this without expectation of payment. However, receiving such care can frequently be in the Patient’s best interest and enhance their quality of life. If there is no contractual relationship and the care is provided by way of natural love and affection without agreed hours or breaks the Deputy would be entitled to consider a family care package.
The Deputy must determine before payment:
• Is it in the patients interest
• Does the decision to make a payment conflict with the Deputy’s duty not to take advantage of their position
The Deputy must consider all the “relevant” circumstances in reaching a decision on the patients best interest and ensuring their own position does not conflict with the Patient (for example, not to pay themselves for the care given).
Professional Deputies are empowered to make decisions about family care payments under their court order and, provided such payments are in the best interest of the Patient, approval would not be required.
Lay Deputies providing care and taking payment either to themselves or someone closely connected are advised to seek approval beforehand to avoid any risk of breach of their duties.
The nature of the care must meet the needs of the patient and be of a good standard following the recommendations of any experts. The care should be affordable and some form of cost expenditure plan available for review. Consideration must be given to the age and life expectancy of the Patient, any appropriate tax planning and financial records maintained.
A full review of the guidance can be obtained from https://www.gov.uk/government/publications/public-guardian-practice-note-family-care-payments.
There is often pressure on Lay Deputies to do the right thing by the Patient. A Deputy may feel they are being scrutinized, rightly or wrongly, by close members of the Patient’s family or by the Office of the Public Guardian in respect to expenditure and appointment of third parties for care or financial advice.
Deputies however need not feel isolated. The Office of the Public Guardian is there to provide guidance if needed and professional help is available and can be properly obtained and funded by the patient in the right circumstances. Matthew Edwards is a member of Court of Protection Deputyship panel and Kerry Hull advises and represent’s clients in Court of Protection proceedings.
If you would like more information on any contentios issues wih regard to probate, wills and estate administration please contact our Contentious Probate Department on 01708 229 444.
This article was written by Kerry Hull, Senior Associate at Pinney Talfourd Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at August 2016.