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https://publicguardian.blog.gov.uk/2020/12/16/giving-gifts-as-an-attorney-or-deputy/

Giving gifts as an attorney or deputy

Posted by: , Posted on: - Categories: Attorneys, Deputies, deputy, Gifting, Guidance, lasting power of attorney, LPA, Mental Capacity Act

If you’re acting on behalf of a loved one, as an attorney or a deputy, big occasions such as Christmas, birthdays or anniversaries can raise some questions.

We have some guidance available to help you decide what is an appropriate gift and have pulled out some key things to consider when deciding what, if anything, you’d like to give to loved ones. 

It’s not compulsory for you to give gifts, unless clearly stated in the lasting power of attorney or court order, and should always be done with the best interest in mind of the donor (the person whose financial affairs you’re looking after) 

What is a gift?

Gifts actually cover a wide range of things such as:

  • 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

Who can give gifts?

As part of the Mental Capacity Act, the donor should always be consulted before decisions are made and included as much as possible. If the donor has mental capacity then it is their decision. 

If the donor has fluctuating capacity you will want to consult them at the best possible time and make sure they understand the request. You can find more information on how to assess if someone has the ability to make these decisions or how best to involve them in the decision making process in chapter 4 of the Mental Capacity Act Code of Practice. 

Remember, an unwise decision doesn’t mean the donor doesn’t have capacity to make that decision.

If the donor doesn’t have mental capacity then it is the attorney or deputy's decision. You should consider if it is in the donor's best interest to be giving gifts.

When can we give gifts?

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.

Gifts should be given to friends, family or close acquaintances of the donor for customary occasions. Donations to a charity are also considered gifts.

What is considered a ‘reasonable gift’?

You will need to look closely at the donor's finances. Any gifts given should not impact on their ability to be able to pay for their care for the rest of their life and should be comfortably affordable. This can vary from person to person.

 

What happens if I give a gift which I don’t have the authority to give?

If you’ve given a substantial gift to someone or have used the donor's money yourself as a gift, there are a few possible outcomes. 

  • We may investigate you and your actions 
  • Ask you to pay back money or return gifts 
  • You may need to seek retrospective approval from the Court of protection for the gift 
  • You may be removed as an attorney or deputy 

For more information on gift giving, including loans, giving gifts to yourself and when you need to go to the court of protection for approval, look at our guidance on gov.uk/opg.

You can listen to our podcast on anchor.fm/opg-podcast 

Visit our social media accounts Facebook and Twitter @OPGGovUK

If you still need more information get in touch with out contact centre 0300 456 0300. 

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