With the social care system under increasing pressure, families are perhaps more than ever struggling to find affordable and sustainable care solutions for elderly relatives.
Whilst many elderly people understandably want to receive care in their own homes, it can be difficult to find the right care package and often family members step in to become the primary carer, either by choice or by default.
But what many do not know is that if they wish to look after their relatives on a formal basis, it may be possible to receive payment for the care they provide.
As a result, some may be losing out due to uncertainty about what they are entitled to. It’s a complex area, however, and you must make sure you are legally authorised to receive care payments and if in doubt, seek advice.
How do you find out if you qualify?
If the person you are caring for still has capacity to make decisions about their finances, they should be encouraged to take advice themselves. Care payments need to be in respect of care actually provided and affordable. It would be best to set out the arrangement in writing at the outset.
If you are an attorney under a Lasting Power of Attorney for property and affairs, that does not give you the automatic right to pay yourself for any care you provide to the donor (the person who made the LPA).
This is a common misconception and sometimes attorneys can find themselves subject to investigation if significant funds have been received without authority. Ultimately you could be removed as attorney if payments are not authorised.
Attorneys and Deputies have a fiduciary duty to the person they act for, meaning they cannot use their position for any personal benefit. The way around this in cases where an Attorney/Deputy is also in the position of carer for someone who lacks capacity, is to apply to the Court of Protection for authority to receive family care payments.
Family members often make fantastic carers and this is recognised by the Court of Protection in cases where the person being cared for lacks mental capacity to make decisions about their finances and / or welfare because family carers can help:
Authorised care payments
The Court can be very sympathetic regarding these arrangements. The general rule (if it is affordable) is to authorise care payments to family members at a rate of 80 per cent of the private cost of care. No tax or NI contributions are payable on these payments.
However, in many cases, available funds are insufficient to pay as much as 80 per cent of the private care rate, so caution will be needed when considering how much is affordable to pay a relative.
For further guidance for attorneys and deputies, please see the Office of the Public Guardian’s (OPG) summary on family care payments by clicking here.
Wards Solicitors’ specialist Court of Protection team can help you in applying to the Court of Protection in these cases and/or in any dealings with the OPG which require you to make an application for authority to receive care payments.