I am a Deputy. Can I use my loved one’s funds to pay a family member to provide care during Coronavirus?
During the Coronavirus pandemic people may want to be cared for by members of their household or their usual carers may not be able to work. If you are a deputy or an attorney and want to make what are known as family care payments from your loved one’s funds there are some things to consider. A Deputy/Attorney has a duty to act in a person’s best interests and not to take advantage of their position.
If you are the Deputy and want to pay yourself to provide care you will need to make an application to the Court of Protection for approval. If you are an Attorney it will depend on the powers you have which will be set out in the Lasting Power of Attorney (LPA). If the LPA does not give you the power to pay yourself to provide care then you will also have to apply to the Court of Protection for approval. This is because a Deputy/Attorney has a duty not to take advantage of their position as well as having to act in person’s best interests.
If you are the Deputy/Attorney and want to pay another family member to provide care, the Office of the Public Guardian advises that you may need court approval. It is advisable to be cautious and to at least speak to the OPG before making any family care payments. You should also read the OPG’s guidance note about family care payments which can be found at https://www.gov.uk/government/publications/public-guardian-practice-note-family-care-payments
This note provides detailed guidance about what will be in a person’s best interests including that any care given by family members should meet the person’s needs, cost less than it would at commercial rates, be affordable and high quality, and guidance about how to calculate the level of family care payments.
You may be faced with the problem that you want to start paying family members now because of the Coronavirus but are unlikely to be able to obtain approval from the Court of Protection in time. The court is very busy and there are delays. If you need to start making family care payments urgently it is best to first speak to the Office of the Public Guardian. You should also keep detailed records of the reason why it is in your loved one’s best interests to pay a family member to provide care and how much has been paid. You will still have to make an application for court approval but it will be what is known as a retrospective application. There is no guarantee that the court will approve the payments but if you follow the OPG guidance on family care payments and keep good records it will help you show to the court why it was in your loved one’s best interests.
I am a Deputy managing direct payments can I use them to pay a family member to provide care?
As a Deputy/Attorney you may be managing direct payments for your loved one. Direct payments are monies paid by the Local Authority so a person can choose what care and support they want to purchase subject to some rules. Usually a direct payment cannot be used to pay a member of the person’s household to provide care unless the local authority considers ‘it necessary to do so’. The risk of Coronavirus may mean that it is necessary for you to use the direct payment to pay household members. If this is the case you should contact the local authority to check that they agree it is necessary for you to use the direct payment to pay a house hold member for care. You should also check any obligations you have as an employer to existing personal assistants.
The Wolferstans Court of Protection team can advise Deputies and Attorneys and assist with applications to the Court of Protection.
Please contact them on 01752 663295 or alternatively email firstname.lastname@example.org
Partner, Solicitor, Head of Court of Protection