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Gift Giving: Notes for Attorneys and Deputies

Advice Written by Susan Fairless 31 Jan 2018

When, how and if to make gifts are often questions that arise for people acting as attorney or deputy for another (‘the person’). Gifts help preserve relationships with family and friends, but when you are using money that is not your own, it is important not to overstep the boundaries of your powers.

The Public Guardian has now published a useful guidance note on gifting for deputies and attorneys, including the considerations that must be given before deciding whether a gift can be given.

A gift can include:

  • Making an interest free loan of the person’s funds;
  • Creating a trust of the person’s money;
  • Selling the person’s property for less than it’s worth; as well as
  • Giving a gift of cash or items of personal property.

The Public Guardian also  highlights that if a friend or family member is accepting payments for care they are providing for the person and they have not obtained approval of the Court for this provision, this may count as a gift.

The general rules for deputies and attorneys about giving gifts is simple: apart from some exceptions, the law says you must not make gifts from the person’s estate.

To count as an exception, a gift must:

  • Be given on a customary occasion, such as a birthday;
  • Be to charity or to someone related or connected to the person; and
  • Be of reasonable value, taking into account the person’s resources and the size of their estate.

However, if you want to make a gift under a deputy order or a power of attorney, you can apply to the Court of Protection for their approval of the gift.

If you make gifts that go beyond your authority as deputy or attorney without the approval of the Court, the Office of the Public Guardian can take a number of steps, including:

  • Applying to have you removed from your role;
  • Instructing you to apply for retrospective approval of the gift;
  • Asking you to return the gift, or try to return gifts made to others; or
  • Refer the matter to the police.

If you have made previous gifts as attorney or deputy that are outside the scope of your powers you can apply to the Court of Protection at any time for the retrospective approval of the gift and the Court will consider whether this should be granted.

Star Legal has specialist Solicitors who can help you to understand your role as attorney. We can assist with applications to the Court of Protection for the approval of gifts – and also applications for retrospective approval. 

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