Making Gifts as an Attorney or Deputy

Guidance on making gifts as an Attorney or Deputy

Deputies and Attorneys have limited powers to make gifts on the person’s behalf and may need to seek the Court of Protection’s authority to do so.

Before making a gift, Attorneys must consider whether the Donor has mental capacity to understand the decision to make a gift or whether the Donor can participate in such decision.

Attorneys must follow the terms of the Property and Financial Affairs Power of Attorney, whilst Deputies must adhere to the authority given to them in the Court of Protection Order.

Deputies and Attorneys should also consider the person’s Will before making any gifts.

Mental Capacity Act 2005 (MCA) sets out the rules on gift-making. The general rule is that Attorneys and Deputies should not make any gifts from the person’s estate, unless exceptions, as set out in section 12(2) of the MCA apply. To count as an exception, the gift must satisfy all three points below. It must be:

• given on a customary occasion for making gifts within families or among friends and associates (for example, birthdays, weddings, Christmas etc.);
• given to someone related or connected to the person, or to a charity that the person supported or might have supported; and
• of reasonable value, considering the circumstances in each case and, in particular, the size of the person’s estate.

For Attorneys acting under an Enduring Power of Attorney (EPA), the exceptions are set out in paragraph 3(3) of schedule 4 to the MCA. For EPA Attorneys, an acceptable gift must satisfy all three points below. 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 related or connected to the person, or to a charity that 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.

The MCA does not define what a ‘reasonable’ gift is. Attorneys and Deputies are expected to decide what is reasonable.

Attorneys and Deputies must seek approval from the Court of Protection where gifts exceed the limited scope of the authority conferred on them.

The Office of the Public Guardian can investigate unauthorised gifts and has the power to:

• apply to the Court to have Attorneys / Deputies removed;
• apply to the Court to suspend them temporarily from their role and to freeze the accounts of the person for their protection;
• instruct Attorneys / Deputies to apply to the Court for retrospective approval of the gift;
• ask that Attorneys / Deputies to return the gifts or try to return the gifts made to others; and
• refer the matter to the police or other organisations with legal powers.

How can Ellis Jones help?

If you are concerned that a proposed gift may not be within your scope of authority, please contact our experts for advice.