If you are an Attorney or a Deputy, it is likely that you will be faced with decisions about gifting. There are strict rules about gifting and a gift can cover:
Before doing any of these, you will need to apply to the Court of Protection. The Court will decide whether you can go ahead.
The first step is to check whether the person for whom you act as Attorney or Deputy has the mental capacity to make the decision themselves. When acting as Attorney or Deputy you should always support the person to take part in decisions. This would apply to all decisions not just gifting.
As a Deputy you can only make decisions that the person for whom you are Deputy cannot make. Even if a person appears to have the capacity to make the decision to make a gift, you should be very cautious and if the gift is large, you may need to obtain a Mental Capacity Assessment. As an Attorney, you are restricted by the rules on making gifts, even if the person appears to have capacity to make the decision and has instructed you to make the gift.
Attorneys and Deputies must not take advantage of their position, which means if you are an Attorney or a Deputy, you should not be accepting a gift from the person for whom you are acting.
The rules are quite simple, Attorneys and Deputies must not make gifts from the person’s estate. The law says you can only make gifts when all of the three conditions set out below are met:
There are also various factors that you must consider when deciding if a gift is reasonable. These include the impact on their financial situation, their current and future income, assets, capital and present and future needs. You must also consider if the gift is in the person’s best interests.
There are some instances when you may exceed your authority but in such a minor way that it does not justify an application to the Court. However, this is only in very specific circumstances and if in doubt you should always seek advice. Deputies and Attorneys are expected to be aware of their legal responsibilities and there is guidance on gifting available from the Office of the Public Guardian (OPG) and on their website.
If you make an unauthorised gift the OPG can do a number of things including:
For further information about the role of Deputies, Attorneys and making applications to the Court of Protection please contact