Gratuitous care allowances to family carers; guidance for Deputies

The Office of the Public Guardian asked to revoke an appointment of a Deputy, because he had behaved in a way that contravened the authority conferred on him, the Court of Protection (Senior Judge Lush) has provided further guidance on the court’s approach to payments for care provided by family members of a person lacking capacity (known as gratuitous care allowances). This is particularly relevant where the person lacking capacity has received damages for clinical negligence or personal injury.

It has been held in a recent case before Senior Judge Lush (Re HC [2015]) that the Court’s authorisation is always required for payments by a deputy to themselves, or by lay deputies to family members, because these may give rise to a conflict of interest. Although not specifically stated, it may be inferred that this does not apply where payments to family members are being made by a professional deputy.

Furthermore, there seems to be no reason why the same approach should not apply to attorneys under lasting or enduring powers of attorney.

As a result, the Office of the Public Guardian is reviewing gratuitous care allowances in thousands of cases where deputies are making payments to themselves for care they provide to people they look after. Some deputies need to apply to the Court of Protection for authorisation of past and future payments.

Senior Judge Lush confirmed that the Court would normally take as a ceiling the commercial cost of care reduced by 20% because gratuitous payments are not subject to income tax.

The Office of the Public Guardian will shortly be issuing a practice note on gratuitous care payments.

For further advice or information please contact our Court of Protection Team.