The short answer
- There is no single duty of care that comes with being familyThe general duty not to cause foreseeable harm applies to everyone. More specific duties only appear once you decide something your parent cannot decide themselves, or you hold a formal role such as attorney or deputy.
- Your parent can still make decisions you think are unwiseIf they have the mental capacity to make a decision, the law gives them the right to make it even if you disagree, and you cannot lawfully override it.
- Acting reasonably in their best interests protects youIf your parent cannot make a particular decision, the Mental Capacity Act 2005 protects you for acting in their best interests on it, so long as you took reasonable steps first. It does not protect carelessness.
- Reporting a concern is not only your jobThe council has the statutory duty to look into a suspected safeguarding concern, not you. Your role is to raise it.
This page explains the general legal position in England. It is not a substitute for legal advice, and if a lot of money or a serious, lasting decision is at stake, a solicitor who works in this area is worth the fee.
What it means
What duty of care means when you are looking after a parent
Duty of care is a real legal idea, but it is not a single badge that gets pinned on you the day you start helping your parent. Different, more specific duties apply depending on what you are doing and what decision is in front of you.
All the time, for everyone
The everyday duty not to cause foreseeable harm
The general law of negligence, not a rule written for family carers specifically
Anyone helping another person is expected to take reasonable care and avoid doing something likely to cause harm. This applies to daily life generally, not only to caring, and it is not the specific duty a CQC-registered provider has under the Health and Social Care Act 2008.
What this means for you
You are not held to a professional standard. Acting as a reasonably careful person would is enough.
When your parent cannot decide one specific thing
Acting in their best interests, and being protected for it
Mental Capacity Act 2005, sections 4 and 5
If you reasonably believe your parent lacks capacity for a particular decision, you can act in their best interests on it, taking their past and present wishes into account and consulting others involved in their care. The law then protects you as though your parent had consented.
What this means for you
The protection covers acting reasonably, not carelessly. It does not excuse negligence.
When you have taken on a formal role
Being a registered attorney or a court-appointed deputy
Mental Capacity Act 2005, overseen by the Office of the Public Guardian
If your parent gave you Lasting Power of Attorney while they had capacity, or the Court of Protection later appointed you deputy, you must apply the same best-interests principles to every decision in that role, from everyday choices to their money and property. The Office of the Public Guardian can investigate and remove an attorney or deputy who is not acting properly.
What this means for you
This is the only level with an ongoing legal role, rather than protection for a single decision.
The line the law will not let you cross
Ill-treatment or wilful neglect is a criminal offence
Mental Capacity Act 2005, section 44
Anyone who has care of a person lacking capacity, paid or unpaid, along with any attorney or deputy, can be prosecuted for ill-treating or wilfully neglecting them. A conviction on indictment can mean up to five years in prison.
What this means for you
This applies to family carers exactly as it applies to paid staff. Being unpaid is not a defence.
Most family carers spend almost all their time on the first level: the ordinary duty to act as a reasonably careful person would, which applies to everybody, carer or not. The more formal levels only apply once your parent cannot make a particular decision, or you hold Lasting Power of Attorney or a deputyship for them. Am I legally responsible for my elderly parent? looks at the related question of financial responsibility.
Their right to choose
Why your parent can still make decisions you think are unwise
The Mental Capacity Act 2005 starts from the presumption that your parent can make their own decisions, and that a decision you think is a bad idea is still theirs to make, provided they understand it, can weigh it up and can tell you what they have decided.
Choices about food, drink or daily habits
Refusing care they need
Managing their own money
When you can act despite their wishes
If they cannot decide
What the law expects if your parent cannot make a decision safely
Once you reasonably believe your parent cannot make a specific decision, the Mental Capacity Act 2005 sets out how you should reach one on their behalf, and it protects you for doing so properly.
- 1
Confirm this is a capacity question
Before anything elseCheck whether your parent cannot understand the information, cannot retain it, cannot weigh it up, or cannot communicate a choice by any means. If they can do all four, the decision is still theirs, however unwise it looks. - 2
Involve your parent as far as you can
Even if capacity is limitedExplain the decision in a way suited to them, and let them take part as much as possible. A lack of capacity for the whole decision does not mean they have nothing useful to say about part of it. - 3
Look at what they would have wanted
Their best interestsTake into account their past and present wishes and anything they have said or written when they had capacity. Consult anyone else involved in their care, including any attorney or deputy already in place. - 4
Choose the least restrictive option
The final checkAsk whether the same outcome can be reached in a way that limits your parent's freedom less. This applies to a small daily decision as much as a major one. - 5
Write down what you decided and why
AfterwardsA short note of the decision, who you spoke to and why you believed it was in your parent's best interests protects both of you if it is ever questioned later.
If something feels wrong
What to do if you are worried about abuse or neglect
A duty of care dilemma sometimes turns out to be something more serious. Recognising the difference, and knowing that reporting it is not a job you have to do alone, matters more than getting every judgment right yourself.
Has any of this made you uneasy in the last month?
0 of 6 ticked
Physical signs
Money
Care
If any of this applies, contact your parent's local council and ask for adult safeguarding, or the police if anyone is in immediate danger. Under the Care Act 2014, it is the council that has the legal duty to make enquiries once a concern is raised, not you, and you do not need proof before you raise one. If the concern is about a carer you found through PrimeCarers, tell us too; PrimeCarers is an introductory service and does not manage or supervise the care given, so the council's safeguarding process is what investigates it.
Working through a dilemma
How to work through a decision when you are not sure what is right
Not every duty of care dilemma is a capacity question. If your parent cannot make the specific decision in front of you, the steps for reaching one safely are set out above, and the callout there covers what to do once money or property is involved. What follows is for the more common case: a decision your parent can still make, but the conversation about it keeps getting put off.
- 1
Have the conversation you are avoiding
FirstWrite down the specific questions before you sit down, so it does not turn into a general argument about independence. Most dilemmas get harder the longer they are left unsaid. - 2
Ask what your parent wants
Directly, not through someone elseTheir wishes carry real weight in working out what to do next, even where you end up disagreeing with them. - 3
Get a professional view where the problem is not a capacity question
GP, social worker or occupational therapistA GP can assess a health worry, and a council social worker can carry out a care needs assessment and suggest options you had not considered. Both are free, and neither requires a capacity question to be involved.
Bringing in paid help
Whether a paid carer changes your duty of care
Bringing in help does not hand your duty of care to somebody else. It does change who is responsible for what, and it is worth being clear about the split from the start.
| Everyday decisions | Money and legal decisions | A safeguarding concern | |
|---|---|---|---|
| You | Yours, with your parent, or in their best interests for anything they cannot decide | Only with a registered Power of Attorney or deputyship, beyond small everyday spending | Yours to raise. You do not have to prove it or resolve it alone |
| A carer found through PrimeCarers | Carries out the visits agreed, and tells you if something changes or worries them | Should never be given your parent's bank card or control of their money | Their own responsibility to raise what they see; PrimeCarers does not manage or supervise the care given |
| The council | Not usually involved unless you ask for a care needs assessment | Can assess for funding, with duties under the Care Act 2014 once involved | The legal duty to make enquiries once a concern is raised |
You
- Everyday decisions
- Yours, with your parent, or in their best interests for anything they cannot decide
- Money and legal decisions
- Only with a registered Power of Attorney or deputyship, beyond small everyday spending
- A safeguarding concern
- Yours to raise. You do not have to prove it or resolve it alone
A carer found through PrimeCarers
- Everyday decisions
- Carries out the visits agreed, and tells you if something changes or worries them
- Money and legal decisions
- Should never be given your parent's bank card or control of their money
- A safeguarding concern
- Their own responsibility to raise what they see; PrimeCarers does not manage or supervise the care given
The council
- Everyday decisions
- Not usually involved unless you ask for a care needs assessment
- Money and legal decisions
- Can assess for funding, with duties under the Care Act 2014 once involved
- A safeguarding concern
- The legal duty to make enquiries once a concern is raised
Every carer on PrimeCarers has had their identity, right to work and an enhanced DBS check on the Update Service verified, and has interviewed online, before their profile appears; carers set their own rates, typically from £18 to £25 an hour with our fee included.
Bringing in a carer does not remove your part in the bigger decisions, such as where your parent lives or how their money is managed. It does take the physical, day-to-day tasks off your hands for the time they are booked, which is often the pressure point that turns a manageable dilemma into an overwhelming one. How many visits a week does my parent need works out what that could look like, and you can search vetted carers near your parent to see who is available.
Questions
Questions families ask about duty of care
Not a single, specific one. The general duty not to act in a way likely to cause harm applies to everyone. More specific duties only start once you are deciding something your parent cannot decide for themselves, under the Mental Capacity Act 2005, or you hold a formal role such as attorney or deputy.
Yes, if they have the capacity to make it. Section 1 of the Mental Capacity Act 2005 says a person must not be treated as unable to decide merely because the decision seems unwise. You can raise your concerns, but you cannot lawfully override it.
Section 5 of the Mental Capacity Act 2005 protects you for an act done in connection with their care or treatment, provided you took reasonable steps to check they lacked capacity and reasonably believed acting was in their best interests. It does not protect negligence.
Yes. Section 44 of the Mental Capacity Act 2005 makes ill-treatment or wilful neglect of a person who lacks capacity a criminal offence, applying to anyone who has care of them, unpaid family carers included. A conviction on indictment can mean up to five years in prison.
If they have the capacity to understand what they are refusing, that is their decision. It is worth finding out why before assuming the worst; refusal is often about dignity or control rather than the task itself. A care needs assessment from the council can help set out what is required and open a conversation with someone outside the family.
The council. Under section 42 of the Care Act 2014, a local authority must make safeguarding enquiries once it has reasonable cause to suspect an adult with care needs is at risk of, or experiencing, abuse or neglect. Your part is to raise the concern, not to resolve it.
Not for everyday best-interests decisions, already covered by the Mental Capacity Act. You need a registered Lasting Power of Attorney, set up while your parent still has capacity, for ongoing authority over their money or welfare. If they have already lost capacity and none was made, you would need to apply to the Court of Protection to become their deputy; solicitors' fees for a deputyship application covers what that involves.
No. A carer you find through PrimeCarers takes responsibility for the visits you have agreed, but the bigger decisions about your parent's care and welfare stay with you and your family. PrimeCarers is an introductory service; we check every carer's identity, right to work and enhanced DBS on the Update Service, and interview them online, but we do not provide, manage or supervise the care itself.