Can You Be Paid for Caring for a Family Member?
It may be possible to receive payment for caring for a family member, but there is no automatic entitlement. Many families find themselves caring for an elderly parent, spouse or other loved one without ever discussing whether the person providing care should be paid. Whilst these arrangements often begin informally, disputes can arise where one family member takes on a significant caring role over a number of years.
Below, we provide an overview of the recent High Court case of Bernadette Rogers v Andrew Wills and highlight some of the key considerations for families seeking to avoid the lengthy, costly and emotionally challenging dispute that arose in this matter.
An overview of Bernadette Rogers v Andrew Wills
Following the death of her husband, Sheila Wills continued to live independently. As she grew older, concerns arose regarding her welfare and increasing confusion. Bernadette Rogers, a retired nurse, became her mother’s primary carer after her mother moved into her home in 2017. Her mother decided she wished to be looked after by her daughter rather than to move to a residential care home. As Sheila’s health deteriorated and she developed dementia, the level of care required increased significantly. Bernadette Rogers, provided extensive care and support, including accommodation, supervision and assistance with day-to-day living.
Following Sheila’s death in April 2020, a dispute arose between Bernadette and her siblings regarding whether she was entitled to be paid for the care she had provided. Bernadette maintained that her mother had repeatedly expressed a wish that she should be “paid properly” for looking after her and that there was an agreement she would receive payment for her services.
Shortly after her mother’s death, Bernadette transferred £100,000 from funds belonging to her mother’s estate, believing this represented part payment for the care she had provided. The transfer was challenged by her brother, Andrew Wills, who was acting as Executor of the estate. This led to criminal proceedings in which Bernadette was prosecuted for theft and fraud. However, she was acquitted by a jury in 2022.
Bernadette subsequently brought civil proceedings against the estate. The first stage of the High Court proceedings considered whether there was a legally binding agreement that she should be paid for providing care. The Court concluded that there was. Although no specific amount had ever been agreed, the Court found that Sheila intended Bernadette to be remunerated and that Bernadette had provided the care on that basis. The Court was also satisfied that Sheila had capacity when the arrangement was entered into.
Why did the court find that payment was due?
In reaching its decision, the Court considered a range of evidence, including witness evidence and contemporaneous family communications. Particular weight was given to evidence that Sheila had repeatedly stated that she wished Bernadette to be paid for caring for her, together with messages between family members acknowledging that Bernadette should receive payment of some kind for the care she was providing.
A separate hearing was then required to determine how much Bernadette should receive. The Court rejected arguments that her claim should be limited to the hours spent performing physical care tasks and instead accepted that the role involved ongoing supervision, support, accommodation, companionship and being available around the clock. The Court compared the arrangement to the cost of obtaining equivalent care commercially and ultimately awarded Bernadette £127,500, calculated at £150 per day for 850 days of care.
Why Does Mental Capacity Matter When Paying Family Carers?
One of the most significant aspects of the case was that the Court was satisfied that Sheila had capacity when the arrangement was entered into. She was therefore able to decide where she wished to live, how she wanted her care needs to be met and that her daughter should be paid for providing that care.
However, many families face similar circumstances after a loved one has already lost capacity due to dementia, a brain injury, learning disability or another condition affecting decision-making ability.
Where an individual lacks capacity, the position can be very different.
Family members cannot generally decide for themselves that they should be paid from a loved one’s funds for providing care. Equally, an Attorney acting under a Lasting Power of Attorney or a Deputy appointed by the Court of Protection cannot simply make payments to themselves without careful consideration of their duties and the potential conflict of interest that arises.
In these circumstances, it is important to seek specialist advice. Depending on the nature of the arrangement, the authority already in place and the level of payment proposed, it may be necessary to make a specific application to the Court of Protection for approval before payments can properly be made.
Whilst every case will depend on its own facts, obtaining advice early can help ensure that arrangements are implemented correctly and reduce the risk of future disputes or allegations of financial abuse.
Will This Lead to Similar Family Care Claims?
- The decision does not mean that every family member who provides care will automatically be entitled to payment. Cases of this nature are highly fact-specific and will depend on the evidence available. However, the Court’s willingness to recognise an informal arrangement in between family members in this case may be of interest in future disputes involving family care arrangements.
How We Can Help
At Herrington Carmichael, we regularly advise families, Attorneys, Deputies on the legal issues that can arise when a loved one requires care.
Where there are concerns regarding capacity, it is important to obtain advice before payments are made or significant financial decisions are taken. In some circumstances, a specific application to the Court of Protection may be required to authorise a proposed arrangement. Early advice can help ensure that decisions are made lawfully, transparently and in the best interests of the person receiving care, whilst reducing the risk of disputes in the future. Please contact us to speak to a member of our team.
