As we enter the festive season, some may have organised and wrapped their gifts well in advanced of Christmas Day whereas others may be dashing to the shops just before closing time on Christmas Eve. It is an important part of a Deputy’s or an Attorney’s role to consider whether they should be making a gift to preserve the relationships with family and friends of the person whose finances they are looking after.
A Deputy is appointed by the Court of Protection when an individual lacks the necessary mental capacity to manage their property and affairs. The Court will appoint a Deputy on that individual’s behalf and the Deputy must act in the best interests of that individual. An Attorney is appointed by the individual when they have capacity.
Deputies and Attorneys must be aware of the strict limits placed upon them when considering gift-giving. These rules help to look after the best interests of the person that the Deputies and Attorneys are making decisions for.
The Office of the Public Guardian guidance on gifts
The Office of the Public Guardian, who supervises Deputies and Attorneys, has issued guidance on what amounts to a gift. It is defined as using the personās money to buy something for someone else (including the Deputy or Attorney) on a birthday or other ācustomary occasionā or giving the personās money or possessions to another person.
If the individual has the necessary mental capacity to decide to make a gift, then they are free to do so. If they do not have capacity, their Deputy or Attorney will have to step in and decide whether to make that gift.
Unless the power of attorney document or deputyship order says otherwise, Deputies and Attorneys can make a gift only if itās either: to a family member, friend or acquaintance of the person on a ācustomary occasionā or to a charity. In both cases, itās essential the gift is of reasonable value given the size of the personās estate (all the money and property they own).
What is a customary occasion for gifting?
The Office of the Public Guardian defines a customary occasion as a birth, a birthday, a wedding or civil partnership or an anniversary. It also includes occasions where families, friends or associates customarily give gifts, such as Christmas, Eid, Diwali, Hanukkah or Chinese New Year.
If a Deputy or Attorney wishes to make a gift of the individual’s assets which falls outside of the guidance above, then the Deputy or Attorney must apply to the Court of Protection for authority to make that gift.
Deputies and Attorneys do not have to give gifts unless the court order or lasting power of attorney states that they must.
Reasonable and affordable
This Christmas, if you are a Deputy or an Attorney wishing to make a gift to and individual’s family or friend you can do so providing the gift is reasonable and affordable to the person whose money you look after. For example, if you are appointed to look after an elderly relative’s money, you can send a gift to their children and grandchildren as they would have done so themselves when they had capacity.
It can be very difficult for Deputies and Attorneys not to feel pressurised into making gifts on behalf of the individual whose financial affairs they are looking after. If you are concerned about your authority to make gifts and require legal advice, you should contact a solicitor who specialises in manging the property and affairs of vulnerable people.
Hannah Loosemore, associate in the Mental Capacity Department of Enable law
Hannah works with deputies appointed by the Court of Protection to manage property and financial affairs for individuals who lack capacity. She is experienced in making applications to the Court of Protection for contentious and non-contentious deputyship applications as well as statutory wills and gift applications. She also acts for Trustees appointed under a Personal Injury Trust where the client has received a financial settlement due to injury.
About Enable Law
Enable Law is a specialist medical law and personal injury practice with offices across the South West, South Coast and London.
How can Brain Injury Group help?
If you act as a Deputy or Attorney for a protected party and need advice regarding any aspect of your appointment, our member law firms have the expertise to assist. Contact us for further information about mental capacity and the Court of Protection.
