It is very common for deputyship clients to have family members provide care. This could be as simple as cooking meals and assisting with personal care and hygiene, or this could be full time regular care involving nursing and physiotherapy skills.

For many clients, having a family member do the caring is preferable, especially in the case of children as the client is already comfortable with those who will be providing care, as opposed to them needing to build up a trusting relationship with an external carer.

Although many relatives of deputyship clients provide this sort of care without any expectation of payment, for some, it can ease the financial burden of working and being a carer.

The Office of the Public Guardian (OPG) considers payments that enable such care to continue to be in the client’s best interests.

Of course, there are factors to be considered and guidance on making such payments.

What to consider:

When making the best interest decision deputies should consider the following:

Is the care reasonably required to meet the needs of the client?

The care provided must also be of a high standard, if in doubt of either the standard or level of the care, the deputy should obtain a care assessment from social services.

Are the payments affordable for the client?

Any payments made must be affordable to the client in relation to their financial situation, age and life expectancy.

Do the payments accurately reflect the amount of care being provided by the family member?

The deputy should obtain evidence of the level of care being provided. Completing a ‘week in the life’ breakdown of all care provided can be a good tool to ascertain the level of care being given. If the client is a child, does the level of care provided exceed what a parent would normally provide?

Deputies should also look at the family care payments alongside any professional care that is also provided. The family care must be necessary in addition to the professional care, there can be no duplication.

The deputy should also consider the family living arrangements as a whole. For example, if the client owns the property and the family are living in the property rent free, then it may be appropriate to lower the payment to recognise this. Similarly, if the client pays for the household bills this will need to be taken into account.

How to calculate the payment:

There are three ways to calculate payments:

1. The client’s estate is adequate and most of the care is provided by family

The deputy can ask what allowance would be needed. If the amount suggested is affordable, sustainable, and reasonable in relation to the amount of care provided, then this payment can be made.

2. The client’s estate is adequate, and substantial amount of professional care is being provided in addition to family care.

In the case of Re HC [2015] EWCOP 29[1], Senior Judge Lush recommended that in situations such as this, family care payments should be calculated by taking the commercial cost of care in the client’s home area and reducing it by 20%.

3. The client has limited funds

Payments should reflect only what the client can reasonably afford. Deputies can use counsel’s advice on settlement of a damages claim if available to assist in making this decision.

What should not be considered:

If the family member providing care has given up a well-paid job to take on the role of carer, then this should not be taken into consideration. Although this is an admirable move on the part of the family member, family care payments are not intended to replace salaries and therefore are not to be calculated at the level of any previous earnings.

How often do family members need to be paid?

There are no rules on how often family members are to receive the care payments. This is something the deputy can discuss with the family member giving consideration to the frequency of income on the client’s estate. It may be that either monthly, weekly or an annual lump sum would work best for both the client’s estate and the carer.

Demonstrating the best interests decision:

Deputies should keep a record of all payments made to family members for care provided. These payments should also be reviewed regularly and a record of these reviews should be kept. If there are any significant changes in the client’s capital, then it may be that these payments are no longer affordable.

Further guidance on family care payments can be found on https://www.gov.uk/