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Sign up nowGifting as an attorney: 5 dos and 3 don'ts at Christmas
Attorneys with Lasting Power of Attorney must follow strict rules
If you have a Lasting Power of Attorney for a loved one, this time of year may raise some important questions about giving gifts.
Power of Attorney is a legal document that allows one person (the donor) to give another (the attorney) the authority to make financial and/or medical decisions on their behalf.
When making gifts, those acting as an attorney in England and Wales will have to consider the donor’s wishes, views and values first, and be aware of the strict limits in place. These rules help to look after the best interests of the donor.
Here, we explain the five dos and the three don’ts for attorneys when gifting on behalf of a loved one on occasions such as Christmas, birthdays or anniversaries.
- If you'd like to set up a Power of Attorney, for yourself, or someone else, Which? can help - find out which option is best for you. Get started today from £99.
Do decide the gift and occasion
As an attorney you have limited powers to make gifts on the person’s behalf and you may need to seek the authority of the Court of Protection when you do.
Gifts can cover a wide range of things such as:
- using the person’s money to buy something for someone else (including you) on a birthday or other ‘customary occasion’
- giving the person’s money or possessions to another person
- donations to charities
- paying for school fees
- living rent-free or at a reduced rate in a property belonging to the donor
- selling the donors home at a reduced rate
- creating a trust for someone from the donor's property
- giving someone an interest-free loan. If you are giving an interest-free loan from the donor’s funds or a loan to yourself, you’ll need to apply to the Court of Protection for permission.
You can give gifts on a ‘customary occasion’ such as a wedding, anniversary, birthday, graduation, or civil partnership.
This also includes occasions where gift-giving is customary such as Christmas, Eid, Diwali, Hanukkah or Chinese New Year.
- Find out more: how to set up Power of Attorney
Do consult the donor
If your donor has mental capacity they must be consulted about whether to give a gift as part of the Mental Capacity Act.
If the donor has fluctuating capacity you will want to consult them at the best possible time and make sure they understand the request.
If you’re unsure about the person’s mental capacity, then you mustn’t make a gift to yourself or anyone else on their behalf until you have a better picture of their ability to make decisions.
You could arrange a mental capacity assessment by a GP or psychiatrist.
The OPG may ask what steps you took to find out whether the person had mental capacity.
Do consider what is reasonable
The gift must be affordable to your donor and of reasonable value given the size of the donor’s estate, so you will need to look at their finances closely.
You should ask yourself the following questions:
- did the person used to give gifts of this value when they had mental capacity?
- would the gift affect the person’s ability to meet their living expenses, now and in the future?
- what is the person’s life expectancy – and will they have enough funds for the remainder of their life?
- does the gift reflect what the person has said they want to leave to people in their will?
Find out more:what to put in your will
Do keep a record of the gift
You should keep a record of gifts and the situation you make them in, so that you can explain the gifts if you need to.
Do seek guidance if you’re unsure
For further advice, you should contact the OPG in the first case for more information on gift giving. You can also find full guidance on the OPG website.
- Phone: 0300 456 0300
- Email: customerservices@publicguardian.gov.uk
The Court of Protection cannot give unofficial advice on whether an attorney can make a gift. You will always have to make a formal application to the court.
Don't give a gift to strangers
The gift cannot go to a person or organisation unconnected to the donor.
So gifts to relations of the donor, such as wife, brother, sister, niece, or someone connected with the donor, such as a friend or colleague should be acceptable.
A gift should also be allowable to a charity that the donor might have given to if they had mental capacity.
Don't give gifts to avoid paying for care costs
Attorneys can’t give the person’s property away as gifts, or spend their money on gifts, to avoid contributing to care home costs. The law calls this ‘deprivation of assets’.
When local authorities check a person’s assets to see how much they should pay for care, they may include things if you have deliberately given them away to avoid paying.
You also shouldn’t give things away as gifts to make the person qualify for benefits or for government help with care costs.
- Find out more: care home fees soar amid cost of living crisis
Don’t give a gift beyond your authority
If you make a gift that goes beyond your powers as an attorney, the OPG might:
- launch an investigation
- give you a warning
- ask you to pay back money or return gifts
- tell you to apply for ‘retrospective approval’ from the Court of Protection (meaning you ask the court to approve a gift you have already given)
- in the most serious cases, apply to the court to have you removed as an attorney
- alert the police or other organisations that look after the person’s best interests – abusing your position as an attorney might count as fraud.
If you'd like to set up a Power of Attorney, for yourself, or someone else, Which? can help - find out which option is best for you. Get started today from £99.
