Court of Protection (CoP) patients often have carers who are family members; this is especially common, for example, when the incapacitated person is a child where a parent will often be part of the child’s care team or act as case manager co-ordinating their child’s care. These family carers often receive payments from the patient’s funds for their services, referred to as “gratuitous care allowances”. These allowances are currently under review by the Public Guardian the results of which will potentially affect the thousands of families currently in receipt of them.
In the light of the review the senior judge of the CoP recently authorised the publication of a judgment (Re HNL) on this subject, assessing it to be in the public interest to do so. A crucial point, clearly highlighted in the judgment, is that gratuitous care allowances can only be paid by a lay Deputy with the authority of the CoP.
The case concerned a patient called Helen who suffers from intractable epilepsy which has led to other cognitive impairment. Helen underwent unsuccessful surgery for her condition which resulted in a medical negligence claim and the ultimate award to her of a lump sum of £600,000 and periodical payments, linked to the Retail Prices Index, of £25,000 per annum.
Helen’s brother, Adrian, was appointed as her Deputy by the CoP and gave up his paid employment in order to be his sister’s primary carer and case manager. He received a gratuitous care allowance of £23,000 a year for his services. On the instructions of the OPG, Adrian applied to the CoP for an order to authorise the remuneration he had already received and his future allowance payments. The CoP authorised the past payments satisfied that they were justified and directed that a brain injury case manger’s report should be obtained to evaluate and quantify the services provided by Adrian for his sister. This report quantified the value of those services at substantially in excess of the £23,000 per year that Adrian was receiving, with the report’s author commenting that Adrian was providing “an incredible service” to his sister.
In making his decision in this case, Senior Judge Lush set out the relevant law on gratuitous care allowances which the CoP has power to award under the Mental Capacity Act 2005. He pointed out that:
- A Deputy should always apply to the CoP for authority to pay himself an allowance, and a lay Deputy should also apply for authorisation if he or she wishes to pay an allowance to another family member.
- The ceiling for a gratuitous care allowance will be the commercial cost of care reduced by 20% to reflect the fact that such allowances are not subject to tax or National Insurance.
- Allowances should be appropriately indexed to inflation proof their value.
In the case of Adrian’s allowance, the CoP decided that the high standard of services provided, the fact that Helen could afford the payments, and that they were an enormous saving over the commercial cost of the services, meant that the continued payment of £23,000 per year to Adrian, tax-free and linked to the RPI, should continue.
Senior Judge Lush’s decision to publish this judgment is helpful as it clearly sets out when the CoP is likely to authorise the payment of a gratuitous care allowance, how it will assess the situation, the guidelines for deciding on the amount of the allowance and, perhaps most importantly, the need for CoP authorisation. We now await the publication of the OPG’s Practice Note on this subject following its review. In the interim please contact us if you require help and advice on care allowances for CoP patients including court authorisation.