Recent case law sees changes in how reasonable claims for care costs (“gratuitous payments”) provided by family members are determined.
Many families who have a child or loved one with an acquired brain injury or other significant disability find themselves having to decide how to best care for them.
Where the care needs required are long term it is increasingly common for the injured party to live with family members who become their full-time carers. This frequently means making changes to their own lives, to the point of sacrificing their own careers.
Where the injured party has not made a Lasting Power of Attorney, a Court of Protection application for a Deputyship Order is often made to ensure their finances are properly managed, particularly where a successful compensation claim is made. The appointed Deputy would be tasked with keeping accounts and generally looking after the injured parties best interests, under the supervision of the Office of the Public Guardian. All expenditure must be reasonable and in the best interests of the injured party.
Deciding what is reasonable when it comes to gratuitous payments can be difficult; how do you put a figure on the care provided by a loved one? The Court of Protection decided in their recent judgment that it would be acceptable (subject to affordability) to take the commercial costs of care as a ceiling figure and then to reduce this by 20%. As these payments to family members are voluntary payments and are not deemed as income by HMRC so they are not subject to tax, hence the reduction.
All decisions and expenditure are supervised by the Office of the Public Guardian who may seek to revoke the Deputyship Order if they believe the Deputy is acting outside the scope of the Order.
Where a Deputy is unsure of whether his conduct is within his duties and powers, advice and guidance should be sought. At Wilson Browne, we have a specialist Court of Protection team who can assist in making an application to the Court of Protection and provide advice and guidance throughout. We offer experience in acting as professional deputies as well as providing advice to deputies and family members and assisting with new applications and objections to existing orders and applications.