OPG Updates Guidance on Family (Gratuitous) Care Payments: What You Need to Know

Introduction

The Office of the Public Guardian has updated its guidance on family, or gratuitous, care payments. The changes reinforce the importance of careful decision making, clear evidence, and long term financial planning when compensating family members for care. 

While paying family carers can be entirely appropriate, the updated guidance highlights that these arrangements must be properly justified and sustainable. There is a clear focus on ensuring that payments meet the individual’s needs, align with legal principles, and do not place undue pressure on future care funding. 

This article outlines the key points from the updated guidance and what deputies, attorneys and professionals should consider when structuring or reviewing family care arrangements. 

Key takeaways from the updated OPG guidance

• Stronger emphasis on evidence based and well documented decision making  

• Clear expectation that all payments must be in P’s best interests  

• Greater scrutiny on affordability over the individual’s lifetime  

• Confirmation that attorneys can make decisions on care payments without court approval unless there is a conflict of interest  

• Clarification that professional deputies do not need Court of Protection approval where best interests decisions are properly evidenced  

• Increased focus on sustainability alongside future care, accommodation and support costs  

• Expectation of regular reviews and detailed record keeping  

When are family care payments appropriate?

Family care payments may be appropriate where care is genuinely required and provided to meet P’s needs. The guidance makes clear that any arrangement must reflect the actual level and quality of care being delivered, rather than informal or assumed contributions within a family setting. 

In practice, this means that care should be supported by appropriate evidence, such as a care assessment where there is any uncertainty. Particular care is needed where P is a child, as some level of care is already expected from parents and should not automatically be treated as a compensable service. 

It is also important to recognise that family care arrangements often lack the structure of professional care packages. There may be no clear division of responsibilities or oversight of delivery. This increases the importance of careful assessment and documentation to ensure the arrangement remains appropriate and defensible. 

Authority to make gratuitous care payments

The updated guidance provides helpful clarification on who can authorise family care payments and when court approval is required. 

Attorneys are generally able to make decisions about gratuitous care payments without applying to the Court of Protection, provided there is no conflict of interest. However, they must still comply with their duties, including the obligation not to profit from their position. This is particularly relevant where an attorney is also the person providing care. 

For professional deputies, there is no requirement to seek Court of Protection approval where they can demonstrate a clear and well evidenced best interests decision. However, an application may still be necessary where agreement cannot be reached on the level of payment or where there is a risk of challenge from other family members. 

In all cases, the key requirement is that decisions are properly reasoned, documented, and aligned with P’s best interests. 

Best interests decision making: key factors

The updated guidance places significant weight on structured and well evidenced best interests decision making. Deputies and attorneys must be able to demonstrate how they have reached their conclusions. 

The following factors should be considered: 

Care must not only be appropriate on paper but must also be delivered in practice. Deputies and attorneys should ensure that care arrangements are monitored and verified, subject to reasonable interruptions such as hospital admissions. 

How should payments be calculated?

The guidance confirms that there is no single fixed approach to calculating gratuitous care payments. However, calculations must be reasonable, evidence based, and reflect both the level of care provided and P’s financial position. 

The guidance also makes clear that a family member giving up employment to provide care is generally not a determining factor in setting payment levels, except in exceptional circumstances. 

Conclusion and next steps

The updated OPG guidance provides greater clarity but also increases the level of scrutiny applied to family care payments. 

While such arrangements can play an important role in meeting P’s needs, they must be carefully structured, properly evidenced, and financially sustainable over the long term. 

If you would like to discuss how to model, review or stress test family care payments as part of a wider financial plan, please get in touch with our Court of Protection team at Anthony Gold Solicitors. Send us your query at mail@anthonygold.co.uk, or call us on 020 7940 4060.