Family Care Payments

Many relatives and friends provide some level of care for a person who requires it, often without any payment. However, in some cases, a payment can ease the carer’s own financial situation and enable them to continue to care for the person.

A family care payment may be justified where:

• the care provided is informal in nature;
• there is no contractual relationship, i.e. there are no agreed hours, breaks or holidays; and
• the family member is providing the care by way of their natural love and affection.

Authority under a Power of Attorney

If there is an express provision in the Property & Financial Affairs Lasting Power of Attorney (LPA) confirming the Donor’s wish that funds can be used for family care payments, there is no need for the Attorney to seek the Court’s authority, even if the Attorney is in a position of conflict of interest.

If there is no such provision contained in the LPA, the Attorney should apply to the Court of Protection for authority under section 23(2) of the Mental Capacity Act 2005 (MCA).

Authority under a Deputyship Order

Usually, a Property & Financial Affairs Deputyship Order gives a general authority to manage the person’s financial affairs, which can include setting up family care payments. However, the Deputy must consider whether the payment being proposed is in the person’s best interest and whether the decision to make such payment conflicts with the Deputy’s duty not to benefit from their position (fiduciary duty).

A Deputy who would like to be in receipt of the family care payments should seek an authority from the Court of Protection to make such payments, as otherwise they may be in breach of their fiduciary duty. The Deputy may also be required to seek Court’s approval if they are paying someone they are closely connected to, such as a spouse or child.

Professional Deputies are usually empowered to make decision about family care payment without the need for an additional authority from the Court.

Specialist Court of Protection Solicitors

Our experienced team can provide guidance on setting up Family Care Payments and can assist, should a Court of Protection application be necessary.