The Office of the Public Guardian (OPG) has released updated guidance on family care payments in March 2025, revising its expectations for deputies who authorise payments from P’s funds to family members providing informal care. The guidance aims to balance P’s best interests with transparency and fairness in remunerating family members.
However, this new guidance notably removes the previous benchmark hourly rates, previously anchored in ASHE data. In this article, I will explore the key provisions of the 2025 guidance, clarify the three calculation methods now set out by the OPG, and consider the implications of the OPG’s silence on hourly rates.
What is Family Care and Why Does it Matter?
Family care payments (often referred to as “gratuitous care payments”) are payments made to relatives or friends who provide informal care for someone lacking mental capacity (‘P’). The principle underpinning these payments is to:
- Recognise and support family members who deliver valuable care.
- Ensure that payments are made in P’s best interests, rather than motivated by family needs.
- Prevent exploitation or inappropriate use of P’s funds.
Summary of the 2025 Guidance
The 2025 guidance applies to property and financial affairs deputies and clarifies:
- Deputies must act in P’s best interests, avoiding conflicts of interest.
- Lay deputies who are receiving payments for providing care should seek Court of Protection approval.
- Professional deputies retain discretion but must evidence the decision-making process.
- All payments must be affordable and reflect good value compared to professional care costs.
The Calculation Methods
The 2025 OPG guidance sets out three distinct methods for calculating family care payments.
1. Where P’s Estate is Sufficient, and the Family Provide Most of the Care
Method
- Deputies may determine an appropriate allowance that recognises the substantial role played by the family in providing P’s care.
Why?
- The family is delivering a high proportion of care, often reducing the need for external professionals.
- Payments should enable the carer to continue providing support, while balancing affordability and sustainability for P’s estate.
What Deputies Should Do
- Assess the amount and nature of care provided.
- Consider the extent to which the care is over and above what might be expected from a family member, especially in the case of children.
- Set a payment that is reasonable, supports the carer’s ongoing role, and is sustainable given P’s resources and life expectancy.
2. Where P’s Estate is Sufficient, and There is Significant Professional Care
Method
- Deputies should calculate the cost of family care by taking the commercial cost of care and applying a discount.
- The Re HC [2015] EWCOP 29 approach remains relevant:
- Use the commercial rate of care (historically based on ASHE data).
- Apply a 20% reduction to reflect the fact that payments are voluntary, and typically exempt from tax.
Why?
- P is already receiving professional care, and family members are supplementing, not replacing, this care.
- Payments to family members should represent a cost saving compared to what P would otherwise pay for commercial care services.
What Deputies Should Do
- Quantify the hours of care provided by the family.
- Refer to commercial rates for carers (previously guided by ASHE data, though no longer specified in the guidance).
- Apply a reduction (historically 20%) in recognition of the informal, non-taxable nature of the arrangement.
- Consider periodical payment orders (PPOs) if one has been awarded – if so, the 80th percentile ASHE rate may be applicable.
3. Where P’s Estate is Limited
Method
- Payments should reflect what P can reasonably afford, irrespective of commercial care rates.
Why?
- The focus is on ensuring sustainability, avoiding depletion of P’s assets, and protecting P’s ability to meet future care needs.
- Even if a family member has sacrificed employment or income to provide care, family care payments are not intended to replace a full salary, except in the most exceptional circumstances.
What Deputies Should Do
- Undertake a comprehensive affordability assessment.
- Prioritise P’s financial needs and life expectancy.
- Consider whether nominal payments are more appropriate in the circumstances.
Clarifying the OPG’s Reasoning Behind the Three Methods
- Flexibility: The OPG appears to have moved towards principles-based guidance, leaving room for professional judgment rather than prescribing strict formulas.
- Proportionality: Payments must be proportionate to the level of care provided, and the financial capacity of P’s estate.
- Affordability: Across all scenarios, affordability remains paramount. Payments should never compromise P’s future care needs.
- Best Interests: Deputies must focus on what is in P’s best interests, rather than compensating family members for their personal sacrifices.
What Happened to the ASHE Benchmark Rates?
The 2024 Position
- The OPG explicitly directed deputies to use ASHE data as the basis for calculating hourly payments:
- The mean hourly rate for care workers was £12.89.
- After a 20% reduction, the benchmark rate was £10.31/hour.
- Deputies were required to record the rate, hours worked, and payments made in their annual reports.
- Professional deputies were expected to comply by July 2024, with rates reviewed annually.
The 2025 Guidance: Silence on Hourly Rates
- There is no mention of ASHE data or benchmark hourly rates.
- Deputies are now directed to:
- Focus on case-specific considerations.
- Ensure payments are affordable, represent good value, and are in P’s best interests.
- The previous quantitative anchor has been removed, leaving a vacuum in terms of standardised rates.
Implications for Deputies and Court of Protection Practitioners
Flexibility and Risk
- Professional deputies have more discretion but also face greater scrutiny to justify payment decisions.
- Without benchmarks, lay deputies may find it difficult to determine appropriate rates and may risk breaching fiduciary duties if payments are challenged.
Increased Need for Robust Records
- Deputies must meticulously document:
- The basis of their decisions.
- Consultations with family and professionals.
- Calculations of affordability and value for money.
Potential for Inconsistent Approaches
- Different deputies may arrive at different conclusions in similar cases.
- There is potential for disputes among family members and for OPG interventions if decisions lack clear justification.
Recommendations for Practice
- Continue Referencing ASHE Data
Although not mandated, ASHE rates remain a useful benchmark for demonstrating reasonableness and proportionality. - Court Applications Where Necessary
For lay deputies, or in cases where payments are likely to be contentious, apply to the Court of Protection for approval. - Regular Review and Consultation
Review payments at least annually, or following significant changes in P’s circumstances. Consult all relevant parties and maintain clear records. - Balance Carer Needs with P’s Interests
While recognising the sacrifices of family carers, payments must be justified solely by P’s best interests, not the carer’s personal circumstances.
The OPG’s 2025 guidance provides greater flexibility, but at the cost of clarity. Deputies now need to exercise careful professional judgment without the comfort of a set hourly rate. This shift may mark a new era of principles-led decision-making, but it comes with risks for those seeking to navigate the delicate balance between fairness, sustainability, and fiduciary duty.
We can expect the courts, and perhaps future OPG updates, to offer further guidance on how deputies should proceed in this newly uncharted territory.
Jessica Jarvis 
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