Can a Deputy pay Family Members for Care?

Court Of Protection and Family Payments

A Deputy is appointed by the Court of Protection to manage the finances of a person who lacks mental capacity. In many cases, the incapacitated person needs carers and this care is often provided by family members. 

Family carers may struggle financially because they are no longer able to go out to work.

If they ask the Deputy for financial assistance, the Deputy must decide if it is appropriate to pay the family members for the care they provide and how much they should be paid. 

If the Deputy is not a professional person, the Deputy will have to make an application to the Court of Protection for approval of any payments to themselves for the care that they provide. This is because a Deputy, like a Trustee, cannot personally benefit from their role as Deputy. They cannot decide to pay money from the Deputyship funds to themselves or people close to them, such as their spouse or children. 

If the Deputy is a professional, they can decide to make payments to family members for care without needing Court approval. However, they must show that they have considered the factors listed below. 

 Factors to be considered:

Any payments made to family members for care must be in the client’s best interests. The following factors are relevant when a Deputy is considering this issue:

1. The care must meet the client’s needs and be of a good standard

2. Payments should be at a reasonable level. The usual approach is to use the going market rate for professional carers in the local area. The Deputy must deduct 20% from the local hourly rates to allow for notional tax and national insurance. 

3. Payments to family members should always cost less than payments to professional carers. The level of the carer’s previous earnings is not relevant to the calculation.

4. Care payments must be affordable and sustainable taking into account the client’s resources, age and life expectancy;

5. Payments should take into account all other benefits that the family carer has such as living in the client’s property rent or mortgage free or the carer’s allowance. Free accommodation is considered to be a benefit in kind and would reduce the amount due to the carer.

6. If the client is a child, you must discount the level of parental care that the child would have required in any event. You must only pay family members for any additional hours of care arising from the child’s

How can Andrew Isaacs Law help?

Andrew Isaacs Law we have been appointed as Professional Deputy for many clients.  We have a specialist team who deal with all aspects of property and affairs Deputyships. We can also provide advice and assistance for family members acting as Deputy.  

Philippa Barton    Senior Solicitor      Court of Protection                                               08.02.2023