Back in October 2015 and March 2016, Clapham & Collinge reported on the lack of clarity in relation to gratuitous care payments and warned Attorneys and Deputies to be cautious when making payments to themselves. The only real guidance provided thus far has arisen from Court of Protection case law - payments are permitted, but only if they are reasonable and in the Donor's best interests. See our previous articles listed below:
- Money over mother: Son charged elderly mother £400 a day to visit her
- Attorneys and Deputies: Gratuitous care allowances - where's the line?
- Attorneys and Deputies: Gratuitous care payments
On 18th May 2016, The Office of the Public Guardian (OPG) published guidance on family care payments (also known as gratuitous care payments). The practice note has been welcomed by many, adding some clarity to the grey area that is gratuitous care payments. Click here to see the full OPG practice note.
The guidance sets out the legal framework and the OPG's view of how Deputies should approach gratuitous care payments, including factors for them to consider when deciding on the level of such payments. It also covers what is meant by family care, when the Court of Protection's authority is needed, increases in amount and frequency of payments, record keeping, reviews and tax liability.
The legal framework takes into account three recent Court of Protection decisions in relation to these care payments and the OPG notes that it may amend the guidance, as and when required, to keep in line with emerging Court of Protection judgements.
The guidance applies to Deputies appointed by the Court of Protection under a property and finance order. The position of Attorneys acting under an EPA or LPA will depend on the specific powers granted. Attorneys however, may find this guidance helpful when considering best interest decisions about care payments.
At Clapham & Collinge we can make sure you are acting correctly as an Attorney or a Deputy and can give you the proper advice to protect yourself and the person you are acting for. If you have any concerns regarding how to manage someone's affairs as an Attorney or Deputy, please contact Lin Whitehead directly on 01603 693572 or email lin@clapham-collinge.co.uk.
For more information on Clapham & Collinge Court of Protection legal services please see our dedicated webpage following this link.
