In circumstances where a deputy or attorney is acting for someone (I will call them ‘P’ because that is the way they are referred to in the Mental Capacity Act 2005), that person usually has other day to day care needs.

In this blog I am going to look at making payments to recognise the care provided by a family member. I am not talking here about care provided professionally through an agency or other organisation but rather the support provided by family, and sometimes friends that goes above and beyond the usual helping out the goes on in families. This type of support will be significant enough that it allows P to continue to live an independent life in their own home. Perhaps a family member helps them to get up and dressed every day, or helps with bathing safely, taking care of the home and so on. The tasks carried out and jobs done will be different in each case.

If this is the situation and if without that family member providing care P would otherwise have to go to live in a care home or to have professional carers come in then the deputy or attorney can apply to the Court of Protection to make payments from P’s money to recognise the support provided. This type of payment if known as a ‘gratuitous care payment, ‘grat care’ or a ‘family care payment” This is not a wage or salary, and no tax is paid on a gratuitous care payment, although the tax office must be updated about the payments being made.

If you are an attorney or deputy and you think that this type of payment may be appropriate, affordable and in the best interests of P then you will need the Court of Protection to agree the right level for the payment. To do this make an application to the Court of Protection with details about:

  • The care provided to P by the person who you want to pay
  • How much it would cost for this care to be done by professional care staff
  • Why it is in P’s best interest to authorise the payments

The Court of Protection gave guidance about gratuitous care payments in a case a few years ago. The maximum amount of the gratuitous care payment is 80% of the cost of paying commercially for the equivalent care. Whatever the level of payment it must be affordable for P.

If the Court is satisfied that the care payments should be made it will agree the appropriate level and include a mechanism for reviewing it each year without having to make a new application.

If you are a deputy or attorney and you are thinking about making gratuitous care payments to yourself or another family member it would be very wise to take professional advice first to make sure that you get everything right. This can be a difficult area to deal with on your own but with good legal advice it should be straightforward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.