A recent decision in the Court of Protection case of Re HNL [2015] has meant that many existing Deputies will require approval (including retrospective approval) for payments made from a Patient’s funds for the ‘gratutious’ care provided by the Deputy or a family member.

What is gratuitous care?

Often following an accident or injuries sustained at birth the Patient is provided round-the-clock care at home. Much of the care is often provided by family members and this can involve such tasks as running errands, providing daily care needs, cooking, feeding, cleaning, dressing, and much more besides. The level of care varies from case to case, but is a vital part of the overall care provided to many Patients in this situation.

In such circumstances the carer (being the Deputy and/or other family members) can be paid a regular sum for this care, such payments being free from income tax and National insurance payments under the rules. Had the payments been incurred through professional carers the costs would have been significantly higher.

Re HNL [2015]

In this case, the carer was the Patient’s brother. The Patient had sustained an injury and was awarded compensation for clinical negligence. The Deputy had initially been  appointed as a receiver, (prior to the implementation of the Mental Capacity Act 2005 (MCA 2005)). At the time the court authorised the Deputy to pay himself £23,000 per year for the care and case management he provided the Patient.

The payments unsuprisingly continued when the Deputy was appointed in the new role instead of as a receiver. However, recently the Public Guardian advised the Deputy that he would be required to apply to the Court for authorisation of the retrospective payments, and obtain permission for ongoing payments. The reason for this is that section 19(7) of MCA 2005, only permits reimbursement of deputies for performing their functions as deputy. The care the Deputy provided did not fall within the remit of this section. For this reason a court application for the authorisation of the gratuitous payments was required.

The Court authorised all the past payments and required a case manager’s report to quantify the value of future care. After the report was obtained the future payments were also approved for a period of seven years without need for further review. The Court commented that the cost of obtaining professional care would have been significantly more expensive than the costs of the Deputy.

What does this mean for you?

In light of Re HNL [2015], authorisation has to be sought from the Court for retrospective and future payments made to the Deputy and family members for providing gratuitous care. A Court application will need to be submitted together with a detailed report for the care that was provided to the Patient and a breakdown of costs incurred. Further, a brain injury case manager’s report will be required to assess the care given by the applicant.

How we can help?

I Will Solicitors specialises in Deputy work and we are able to act as professional deputies or assist lay deputies in their role and completing court applications.