Making gifts under a Power of Attorney

The office of the public Guardian (OPG) has provided new guidance (PN7) for Attorneys and Deputies considering gifts on behalf the person they act for (the Donor). The guidance applies to attorneys under registered Lasting Powers of Attorney (LPAs) for property and affairs or Enduring Powers of Attorney (EPA), as well as Deputies appointed by the Court of Protection (the Court) to manage property and affairs for someone who lacks capacity to make decisions themselves.

The guidance is useful, but lengthy, so over the next 4 weeks, I will pull out the relevant parts for Attorneys to consider. Be extremely careful when dealing with someone else’s affairs, and much more so if you are thinking of making gifts to anybody, including yourself.

There are strict rules on gifts. Attorneys have little power to make gifts without Court approval. The main test is whether it is in the donor’s best interests and the Attorney or Deputy must follow the terms of the EPA/LPA or Deputyship order they are acting under.

What is a gift- When an Attorney moves ownership of money, property or possessions from the Donor, to themselves or to other people, without full payment in return.

The gift can include

  • An interest-free loan from the donors funds (the lost interest is the gift)
  • Creating a Trust
  • Selling a property for less than its value
  • Changing the will of someone who has died by using a Deed of Variation to change the Donor’s inheritance.

The Donors capacity

Before making any decision, the Attorney must ask if the donor has the mental capacity to decide themselves. If they do then the Donor should make the gift.

Under the Mental Capacity Act 2005, in order for the Donor to have capacity to make a decision, the Donor has to be able to

  • Understand the relevant information
  • Retain that information
  • Weigh up or use that information
  • Communicate their decision

Medical opinion should be obtained if the Attorney is unsure If the Donor has capacity to make gifts, the attorney should record the steps taken to establish that. The OPG can ask the attorney to explain that decision, or others could challenge them later The Attorney must consult with the Donor and encourage them to participate in decision-making. Records should be kept of any discussions with the Donor.

Over the next few weeks, we will look at:

Rules on gifting
What is a reasonable gift?
The best interest test
Gifts of Property
Gifts to the Attorney
Applying to the Court
Providing for others
Unauthorised Gifts
The Court and the Police!

Click Here for part 2

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