Hello. I have Guardianship for my son and Social Work agree that I am only person able to look after his care needs and although they are fully supportive of this they can’t find way around legislation which stops a Guardian being PA. There has to be a way around it as without solution I will have to put my son into full time care and this will damage his mental and physical health. Has anyone heard of a Guardian being granted permission to be a PA due to exceptional circumstances? Many thanks.
Hi I looked into this years ago and was firmly told no! PA gets paid you are his guardian and don’t get paid except via normal carers allowance etc.
Can i ask why your wanting to pursue the “PA” as “guardianship “ has much different rules from “PA” as both can’t run together legally, was what I was advised years ago!
Hi. Thanks for reply. Simple answer is that I can’t afford to not work due to care commitments and get little help now that he has turned 18. I simply can’t leave him while I go to work and I can’t get anyone who is able to be PA due to his specific care needs. I’d love nothing more than to continue to care for him as always (after all I am his mother, it’s my responsibility) but now need to pay bills, food etc and carers allowance doesn’t touch costs (and I don’t receive carers).
They have agreed that he needs this care and that I am only one able to provide. They’d happily pay someone else to do it but he’d not cope mentally or physically with anyone else. Again, I’d rather be doing it anyway but there’s a toss up and eating and living in a home with heat etc makes me need to earn money. I have Guardianship so that I can ensure he gets everything he needs. I understand the reasoning behind the guidance but things like this just shouldn’t be so black and white. It should be case by case.
I hear you in same boat now relying on benefits it’s so wrong that they will pay for another person but not us!!
We should all be paid appropriately for the work and care we do but they don’t recognise that!
Good luck it’s not easy decision to make and each person is different. X
Sorry to hear you are in same boat. So many of us are. Legislation needs to change now. I don’t get any benefits now as just remarried (widowed before) and they took everything away because he works but it’s not enough for us all to live on. Aiden’s money is his and with the financial guardianship I have to document it all. So they can’t use that as an excuse. It’s all very wrong when you compare with other benefits. But hey….
Good luck to you! D
Thank you for your post and welcome to the SDS Forum. Thanks also to @Thebusymum for your replies - it’s always helpful when someone can share their experience with other people.
This is an area that we’ve discussed quite a bit here on the Forum and we have a topic titled: ‘Using Appropriate Circumstances Agreements to employ POAs and PAs’
Last year the SDS Statutory Guidance was updated. This has slightly changed the position regarding the employment of a Guardian or Power of Attorney (POA) as a PA for the person they are the Guardian or POA for. I’ve taken some of the discussion from the previous topic and added it below:
I’ve had a further look at the updated SDS statutory Guidance in relation to the employment of family members and people with Power of Attorney or Guardianship for the person they would like to be a Personal Assistant for. The Guidance states that:
‘*If a family member holds a power of attorney or is a guardian for a supported person, they are usually not permitted to be employed as a PA for the supported person if, as part of their role as guardian or attorney, they have the power to make decisions about the support to be provided through the direct payment’ (p.63) (my emphasis)
So the criteria here for anyone with Power of Attorney or Guardianship, is whether their authority extends to decisions regarding the support to be provided to the person they are a POA or Guardian for.
So the answer to your query might be found in the powers that you currently have. If you are a Financial Guardian and they cover decisions about support arrangements, then this would ‘usually’ mean that the POA or Guardian couldn’t be employed as a PA for the person they are the POA or Guardian for.
I highlight this term ‘usually’ as it’s a key point in this Guidance. The Guidance however, does go on to say:
‘The intention of Regulation 9 is to avoid conflicts of interest that may arise if the family member with
power of attorney is making decisions about direct payments and is also carrying out the role of PA, as they would in effect be employing themselves.’ (p.63-64) (my emphasis)
The Guidance then further states:
‘However, Regulation 9 does not cover situations where an attorney is not directly managing a supported person’s direct payments including the signing of contracts. While local authority systems of supervision must comply with the Regulations and be sensitive to potential conflicts of interest, these must not have the effect of imposing a blanket ban that forces supported people to choose between the role of Personal Assistant and holder of Power of Attorney in situations where that power is not currently being used to sign contracts or where a contract can be managed by a third party.’ (p.64)
'Efforts must be made to respect the supported person’s wishes and to take a proportionate and positive approach to managing risks, in line with the statutory principles of the 2013 Act, and the principles underpinning the Adults with Incapacity Act.
In other words, while there may be some circumstances in which being a Personal Assistant while also holding Guardianship or active Power of Attorney may not (be) appropriate, in all cases the wishes of the supported person, where these can be determined, should prompt local authorities to be creative in finding solutions that can mitigate, manage or reduce risk*.’ (p.64) (my emphasis)
So what does this all mean in practise? I think that this Guidance means that you cannot just discount the possibility of someone with POA or Guardianship being employed as a PA for the person they are a POA or Guardian for. The legislation seems to say this is not possible. However, this Guidance suggests that in certain circumstances, it is important for Local Authorities to be ‘creative’ in how they find a solution to certain situations - which could mean supporting the POA or Guardian to be employed as the PA.
For yourself, if you are the Welfare and Financial Guardian, then you’re likely to be making decisions about the direct payment, how this is managed, making payments and signing contracts for example. If there was a situation where there were 2 (joint) Guardians. they might be able to arrange things so that 1 Guardian didn’t have this authority or didn’t get involved in these types of decisions, which might then allow them to be a paid PA to the person they are the Guardian for. I’m not sure if you’re in a position to have a 2nd joint Guardian put in place,at all?
The other element to this is whether your son would have a view about who he would like to support him and be his PA. The expectation is that the Local Authority need to take his views into consideration and to ‘respect the supported person’s wishes and to take a proportionate and positive approach to managing risks’ (p.64). Some Local Authorities are trying to do this by developing 'Appropriate Circumstances Agreements’. This could be something that you could ask your Local Authority to look at as well.
The further element is about not having a ‘blanket ban’ in place. Each person’s individual circumstances needs to be looked at with a view to being ‘creative in finding solutions that can mitigate, manage or reduce risk’ (p.64)
I think the Statutory Guidance enables you to have a further conversation with the Local Authority about how you can put in place an arrangement that would enable you to become the paid PA - but also put in place any relevant safeguards that can give all parties some reassurance that the support required will be delivered and any future employment issues can be addressed effectively.
I’m sorry that’s such a long reply, but this is quite a complex issue and people are having to try and apply the updated Statutory Guidance in practise, which has changed what was previously understood. If you could let me know which Local Authority area you live in, there might be a Local Authority SDS Lead Officer that we could put you in touch with.
Thanks so much for your response it’s as I thought but makes more sense way you e written it.
I’m sure you’ve looked into it, but I would always urge someone in your position to get a full welfare benefit check (and ‘better off’ calculation that includes income and outgoings) so that you can make a decision based on all the facts. Undoubtedly, if you have been working and have been used to a decent wage, it will harder to manage on benefits alone (especially if you have a mortgage, car finance, debts etc.), but it is still worth finding out how much you would be entitled to as a household. Carers Allowance isn’t much, but Universal Credit pays additional amounts for carers, housing costs (rent) etc., plus there is help with Council Tax for households on low incomes. If you are entitled to means-tested benefits, this can also open up access to other forms of help, discounts etc. (N.B. If there is anyone else in the household with an income, this could obviously affect your entitlement). As a carer, you may also be able to access financial support for short breaks, though I realise none of this will replace having a salary.
I really hope you are able to find a good solution.
Mark, thank you so very much for all this detailed information. I have checked my Guardianship certificate and it does not have any clauses about payments etc. I am thinking this is a good thing. I’ve send copy of my Guardianship certificate on to social work and highlighted the part in legislation that refers to this. Fingers crossed. Thank you soooo much!! Dawn
Thank you for this advice. I’ve looked into it and the level of support is extremely low. Not enough to cover bills let alone survive. System is flawed. Appreciate your time in replying. Very helpful. Cheers.
Mark, I’m in Dumfries & Galloway. Cheers.
Thanks for getting back to me. In terms of potential local organisations that might be able to support you with a discussion with the Local Authority on this, there are a couple that come to mind.
The Scottish Government funded service is provided by:
Capability Scotland: Self-Directed Support, Brokerage and Payroll Service
‘advice and support in Dumfries and Galloway on self-directed support and social care. This includes support to recruit PAs and any ongoing support required, maintaining a database of PAs seeking employment, advising employers on indemnity cover, providing support with direct payments awards and raising awareness of self-directed support in the community.’
Their contact details are:
Tel: (01387) 403100
Website: Dumfries & Galloway Services
Another local organisation is:
The other organisation I know that is based in the Dumfries and Galloway area is the local Advocacy service. This is provided by:
Dumfries and Galloway Advocacy Service
They can support people with:
- mental ill health
- a learning disability
- with adult support and protection issues
- with issues relating to Self-directed Support
- adults who have generic issues such as with the NHS (incl. Acute and Community Hospitals and GPs), Social Services, Families at Risk (incl. Children’s Hearings, Reviews and Child Protection), Older People’s issues, Physical Disabilities, Education, Housing, and more.
I hope that gives you a couple of options and it would certainly be interesting to hear what happens following any further discussion with the Local Authority.
This is fantastic information. Thank you so very much Mark. I will get in contact with them all on Monday. I was PA to my mother at start of Covid (she passed 6 weeks later though) even though I had Power of Attorney, so Capability Scotland dealt with my timesheets and payments. I’ve said to Social Work if they did this back then, then surely they can approve special circumstances again. We shall see. Really appreciate all your advice and time. Dawn
Its less than ideal, but you can earn up to the earnings limit (£120 or so, check) ? whilst working (maybe from home ) - and still claiming Carers Allowance. I did this for many years … whilst employing PAs to do the minding and being available as and when required. It simply isn’t sustainable being a 365 days a year carer - your mental and physical health is important too.
Thanks for this. That’s what I did for last 11 years (minus carers as only had underlying entitlement due to receiving a widowed parents allowance) but Covid wrecked that self employed business and now I need to earn more again. I am literally only one that can look after him and that’s my issue. Vicious circle. I certainly get and appreciate your advice though. Cheers!