My apologies for not getting back to you sooner - I was away last week.
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 your husband has. If 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.’ (p.64) and:
'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.
The question then becomes - who is the employer and how will you manage the employment relationship and any potential risks/challenges? Or who will contract with the POA or Guardian if they are self-employed? If you are joint Guardians, could this potentially enable you to employ or contract with your husband to be the PA?
I think this Guidance enables you to have a further conversation with the Local Authority about how you can put in place an arrangement that would enable your husband 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 I can’t give you a more precise response - but I hope this gives you some further details which enable you to have a more effective discussion with the Local Authority regarding this.
@Elspeth @JohnB @jeremy @Donald @IanThompson @Becs