Gifting

The Office of the Public Guardian has issued new guidance which sets out strict parameters when an Attorney or Deputy can gift on behalf of the donor or the Protected Party (“P”) under a Deputyship order.

An Attorney or Deputy can only gift on customary occasions such as birthdays and for limited amounts or provide for others in limited circumstances, as set out in section 12 of the Mental Capacity Act 2005 (MCA 2005).

Authority from the Court of Protection, via a court application, is needed for anything over and above this. Always refer to the donor’s or P’s wishes and feelings and the MCA 2005, considering the donor’s or P’s financial means and patterns of historic spending to determine whether it is in their best interests to give the gift. Any decision must be recorded in writing.

For each decision, whether the donor or P has capacity should be considered and whether they can participate in the decision making.

The OPG has included examples of what cannot be given as a gift and needs Court approval by way of an application to Court:

• A loan

• Making a large gift

• Creating a trust over P’s property

• Living rent free in a property owned by P

• Selling a property for less than its value or transferring property into another name

• Changing a Will by a deed of variation

• Maintaining and support another person

• Removing cash assets to reduce P’s estate

Be wary of making any gifts as an Attorney or Deputy from a donor’s or P’s estate and ensure the guidance is followed, as well as the MCA 2005 and refer to the court order/attorney document. Keeping good records and having an audit trail for all decision making is key and making appropriate applications to Court.

Here is the link to the new updated guidance:

giving-gifts-guidance.pdf (publishing.service.gov.uk)