Payments for caring for a loved one

It is common for family members and friends to provide informal care for their loved ones. This could include cooking for them, assisting with personal hygiene or providing companionship. Usually, such care is provided on an informal and infrequent basis. 

However, in some cases, full time care requiring the application of nursing and physiotherapy skills is required. In this case, the provision of care can put the carer under personal financial strain. Payment for their services is required to allow them to continue caring.

The Office of the Public Guardian, which monitors attorneys and deputies, considers that such payments can be in the person’s best interests. Often it is best for everyone if a combination of professional and family care is provided.

However, where a deputy or attorney is the person providing the care and they propose to take payment for this, they should seek court approval to avoid any inadvertent breach of their duties. 

Further, if the deputy or attorney proposes to pay someone they are closely connected to, for example their spouse, then court approval should also be obtained. This is because the Office of the Public Guardian could feel that the decision to pay for the care was not made objectively. Instead the decision may have been influenced by their relationship with the carer.

In deciding whether family care payments should be made, the following factors should be considered:

Suitability: the care must be reasonably required to meet the person who lacks capacity’s needs. It should be of a good standard. Guidance issued by the Office of the Public Guardian advises that if there is any doubt as to the suitability of care, an assessment from social services should be sought.  

Affordability: the payments must be affordable considering the resources, age and life expectancy of the person who lacks capacity.

Whether the payments are justifiable: the payments must properly reflect the care given by the carer and there should be some evidence as to how the care payment has been calculated.

Whether the care is properly provided: temporary interruptions in giving care do not mean the payments need to stop. The payments should be reviewed if there is a change to living arrangements.

Collaboration: it should be considered whether supplemental care in addition to professional care is necessary. Payments should also be agreed in consultation with the carer and other family members, where possible, to avoid any potential conflict.

Proportionality: payments should represent a saving compared to the cost of professional care. They should take into account any other contributions the person who lacks capacity makes towards the running of the household, if they live with the carer. For example, payments may need to be reduced if the carer is living in the person’s property rent-free or is earning other income.

There are three ways of calculating care payments:

1. The first is for the attorney or deputy to ask the carer what allowance is needed and to see if that amount is affordable. If so, then the payment can be made.
2. The second is to take the approach as recommended in the case of Re HC. This involves calculating the care payment by taking the commercial cost of care and reducing it by 20%.
3. Finally, where the assets of the person who lacks capacity are limited, then the payment should be calculated on the basis of what they can reasonably afford to pay.

Deciding whether care payments should be made and, if so, the value, is not an exact science. It leaves open the possibility of payments being made that the Office of the Public Guardian feels are excessive. This is why it is important to seek legal advice when considering whether to make such payments. Should you find yourself in this position, Birkett Long has a dedicated team who would be happy to assist you.

I can be contacted on 01206 217307 or lisa.cox@birkettlong.co.uk.