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Attorneys and their authority to make gifts

When you are appointed as attorney the question will sometimes arise about gifts and whether they can be made on behalf of the person who lacks capacity.

The authority of an attorney to make gifts is laid out on s.12 of the Mental Capacity Act 2005. In short the authority to make gifts is limited to customary occasions for those connected with that person or to a charity, all the while being a reasonable size when looking at what assets that person has and what they would usually gift.

Anything beyond this should be authorised by the Court of Protection, even where there is some uncertainty such as where there may be a conflict of interest for an attorney for example if they are the beneficiary of a gift. Without authorisation there is a risk of repercussions such as in a recent case before the Court of Protection.

The case concerned an elderly gentleman who had appointed his son and a solicitor as his attorneys on a joint and several basis for both property and welfare. The son had made a gift to his wife of £324,000 which was believed to be IHT planning and some smaller gifts of around £10,000 total. The attorneys were asked to make an application to Court for retrospective approval of the gifts.

After considering the gifts the Court decided first of all that the gifts were beyond the attorney’s authority, they refused to approve the gift for a number of reasons and ordered the restoration of the gift. Finally the Court held that the son had exceeded his authority and the solicitor attorney had not acted in best interests as they failed to take decisive action upon learning of the gift. Ultimately the Court revoked the property and affairs LPA and ordered a panel deputy be appointed.

Here at Linder Myers we have a specialist Court of Protection team, if you are ever concerned about a gift or want to consider making an application to Court for approval to make a gift, please do not hesitate to Call Us on 0800 042 0700, or email us on <ahref=””>

Re MB [2017] EWCOP B27 (HHJ Parry)

Find out more about our Court of Protection department
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