Family Law

Private Client analysis: What are the rules governing retrospective approval of gifts and payments for voluntary care? Simon Edwards, barrister at 39 Essex Chambers, discusses Re HH (attorney’s application for retrospective approval) [2018] EWCOP 13 which demonstrates the necessity for someone who has power of attorney to retain proper records of care payments.

What are the practical implications of this case?

What was the background?

What did the court decide?

• the care must be reasonably required to meet the client’s needs and be of a good standard. If in doubt, the deputy may need to seek a care assessment from social services. If there has been any litigation claim for damages, the deputy should consider the level of care recommended by experts in the course of the litigation claim;
• affordability—the payments must be affordable taking into account the client’s resources, age and life expectancy. If the payments cannot be met out of the client’s income, deputies must consider the effect on capital, having in mind the client’s future care needs;
• payments must properly reflect the input by family/carer. There should be some evidence of how the care payment has been calculated in relation to the degree of care provided. If the client is a very young child, deputies should consider whether care is over and above what a parent would normally give;
• the care must be actually provided. Temporary interruptions in provision of care, eg if the client is in hospital, do not mean the payments need to stop, but long-term changes in the client’s living arrangements which affect the amount of care being provided must be considered—eg a permanent move to a care home or supported living arrangement;
• deputies should consider payments alongside the level of professional care in place, ie they should be necessary to supplement professional care;
• payments should represent a saving on the cost of professional care;
• payments should take into account any other contributions the client makes towards the running of the household or paying bills. Payments may need to be adjusted down if the carer is living in the client’s property rent-free or is getting other income;
• payments should take into account the overall family situation, for example, whether anyone is in gainful employment. If two parents are providing care, what is their respective contribution? If the client needs two people at any time to manage their needs, payments may need to increase to reflect this;
• payments should be agreed in consultation with the carer and other family members, where possible. It is good practice to consult others with an interest in the client’s affairs to avoid situations of conflict.