As attorney or deputy, it is likely you will want to make gifts on behalf of the person you act for on special occasions like birthdays, weddings and at Christmas when they lack the capacity to do so. But be aware, you have limited authority to make such gifts and the Office of the Public Guardian sets strict rules on gift-making that you should consider before any gift is made.
Gifts are important tools to help preserve relationships with family and friends. As attorney or deputy, you have very limited authority to make reasonable gifts from the assets of the person you act for. The Office of the Public Guardian has recently updated its guidance on gift-giving that all attorneys and deputies should be aware of.
In 2014, the Court of Protection ordered that two deputies who had made unauthorised gifts to themselves of cars, Rolex watches, designer handbags and jewellery were stripped of their powers and were liable to pay back around £200,000 to the person they had acted for. While most people would recognise these gifts as unacceptable, it is easy to see why many attorneys or deputies worry about making gifts on another’s behalf. The Office of the Public Guardian can investigate any gifts you make to decide whether this is within your authority. So what exactly classes as an acceptable gift and when can these be made?
According to the new guidance, gifts you make on the person’s behalf are usually only acceptable when they:
Are given on a customary occasion such as a wedding, birthday or Christmas
Are given to someone related or connected to the person such as a family member, friend or charity and;
- Are of a reasonable value.
A ‘reasonable gift’ is dependant on the impact it would have on the person’s financial situation, not only now but also on their future needs. Most importantly, as with all attorney or deputy decisions the main test is whether the gift is in the person’s best interests. You should always try to work out the person’s wishes or feelings about the gift but you should also consider whether the person was in the habit of making gifts of a particular size before they lost capacity, the person’s life expectancy, their future care costs or living expenses and whether the amount is no more than would be normal on the relevant occasion. You should keep a record of the gifts you make and an explanation of the reasons behind them and the steps you took to ensure they were in the person’s best interest.
If you want to make a gift that falls outside of these criteria, you will need to apply to the Court of Protection for approval. The court will then decide whether the gift is in the person’s best interests.
At Stephensons we have a specialist team who have a wealth of experience in Court of Protection matters that would be happy to discuss any queries or applications with you. If you would like some advice regarding Court of Protection applications or wish to put a lasting power of attorney or deputyship in place, please contact our team on 01616 966 229.
By Terri Meehan, fee earner in the Wills and probate department