Giving gifts as an attorney or deputy: What you need to know
If you are acting as an Attorney or Deputy, you are very limited as to what gifts you can make, even if the person appears to have capacity and has asked you to make a gift on their behalf. Your powers to make gifts vary depending on whether you are acting as a Deputy or an Attorney under a Lasting Power of Attorney or, an Enduring Power of Attorney.
Property & Financial Affairs Lasting Power of Attorney (LPA)
Subject to any further restrictions in the LPA, a gift can be made by an Attorney, if it satisfies all three points below. It must be:
- given on a customary occasion for making gifts within families or among friends and associates (for example, births, birthdays, weddings or civil partnerships, Christmas, Eid, Diwali, Hanukkah and Chinese New Year);
- given to someone related or connected to the person or (if not a person) to a charity the person supported or might have supported; and
- of reasonable* value, taking into account the circumstances in each case and, in particular, the size of the person’s estate
Enduring Power of Attorney (EPA)
Subject to any further restrictions in the EPA, gifts made must comply with all of the following three points. It must be:
- of a seasonal nature (for example, a Christmas present) or be given on the anniversary of a birth, marriage or civil partnership;
- made to someone (including the attorney) related or connected to the person or to a charity the person supported or might have supported; and
- of a not unreasonable* value, considering all the circumstances and, in particular, the size of the person’s estate
Court of Protection Order (Deputyship)
If you are acting as a Deputy under a Court of Protection Order, the general rule is that you can:
- make gifts on customary occasions to people who are related to or connected with the person provided that the value of the gift is not unreasonable* having regard to all the circumstances and, in particular, the size of the estate; and
- make gifts to charities the person might have made, provided the gift is not unreasonable* having regard to all the circumstances and, in particular, the size of the estate
However, you must refer to the Court Order to check whether there are any other specific authorities given to you in connection with gifting.
What is reasonable / unreasonable?
To work out whether or not a gift is reasonable*, you must consider:
- the impact of the gift on the person’s financial situation. You must think not only about the person’s current and future income, assets, capital and savings but also about their present and future needs (including care needs); and
- whether making the gift would be in the person’s best interests.
* Neither the Mental Capacity Act nor the Office of the Public Guardian provide formal advice on what is “reasonable” or “unreasonable” when it comes to ascertaining whether a gift would be within your authority as an Attorney or a Deputy. You will need to decide what is reasonable. Please refer to the additional guidance on the Office of the Public Guardian’s website.
Can I recover legal fees in seek advice about gifting?
Attorneys or Deputies can recover any expenses incurred in carrying out their duties, which includes court and legal fees. However, if the matter goes before the Court of Protection, the Court is able to depart from the general rule if the circumstances justify, and it is possible that the conduct of the parties will be considered justification for such a departure.
How can Ellis Jones help?
We have extensive experience of advising Attorneys and Deputies in connection with gifting.
If an application to the Court of Protection is required, which can often be complex, time consuming and lengthy, our specialist Court of Protection Team can also assist you.
Get in touch with our expert team on 01202 525333 or you can complete our ‘Make an Enquiry‘ form.
About the authors
Magdalena is a Senior Associate Solicitor and the Head of Court of Protection based in our Canford Cliffs office. Magdalena is also the current Chair of the Bournemouth STEP Committee and has vast experience across several areas that include Court of Protection, Management of Financial Affairs, Powers of Attorney to include Business Powers of Attorney, Drafting complex Wills and more.
"Excellent service thanks Magdalena Lipinska - Maddie was excellent"
Eleanor is a Paralegal in our Wills, Trusts & Probate department and is based in our Canford Cliffs office. Eleanor’s areas of expertise include advice on Court of Protection, Wills, Lasting Powers of Attorney and Estate Administration.
“The team went above and beyond my expectations. They were able to consult me on Lasting Power of Attorney and had such patience with my mother, who is not great on technology, about her will. A special thank you goes to Rosemary Drew, Matthew Rushent and Eleanor Whale for helping me with my queries and for your professional advice”
How can we help?
When you submit this form an email will be sent to the relevant department who will contact you within 48 hours. If you require urgent advice please call 01202 525333.
