Deputies only have a limited ability to make gifts under the authority they are given by the Court. Beyond this, authority is required from the Court of Protection. Our expert team will be happy to discuss your individual requirements and can advise you and make applications to the Court for you for larger gifting.
What is considered to be a gift?
A gift is a transfer of money, property or possessions from the assets of the person you are acting for to yourself or to other people. This can include:
- Financing payments to family members taking on care roles
- Financial support for other family members (e.g. payments to wife/husband)
- Waived interest
- Other financial planning for care to maximise funds
- Unusual financial arrangements
- IHT/tax planning
- Gifts already made and needing the Court’s retrospective authority for
All of these gifts require an application to the Court of Protection for approval.
Why can’t I just make the gift?
The main focus of a Deputy is to protect the assets of the person they are acting for. Where they are considering making a gift, each decision needs to be made considering its own merits. The overriding decision is always whether it is in the best interests of the party they act for. The best interests of the person should be determined on each occasion a gift is considered, taking into account all the relevant circumstances.
Can certain gifts be made without approval of the Court?
A Deputy is permitted to make gifts if they have authority to do so in the Court Order. Deputy Orders usually give a limited power to make the following gifts:
- Gifts on customary occasions to relatives or persons connected to the person they are acting for provided that the value of the gift is not unreasonable having regard to all the circumstances and the size of the estate.
- Gifts to charities which the person that they are acting for might have made. The gift needs to not be unreasonable having regard to all the circumstances and the size of the estate.
Any proposed gifting beyond the terms of the Deputyship Order will require an application to the Court of Protection.
How do I get the approval of the Court?
A formal application will need to be made to the Court for approval of any gifts outside of the above. Our experienced solicitors can make the application for you and guide you through the process.
What can happen if I have made an unauthorised gift?
The Office of the Public Guardian can investigate and ask for an account of any gifts made. If a Deputy makes excessive gifts the Office of the Public Guardian may:
- Apply to the Court of Protection for removal of the Deputy and the appointment of a further Deputy to take their place.
- Apply to the Court of Protection for the security bond of a Deputy to be called in.
- Require the Deputy to apply for retrospective approval from the Court of Protection in circumstances where such an application would have a reasonable prospect of success.
- Request the Deputy to seek the return of the gifts and restore the assets.
- Refer the matter to the police or other relevant regulatory or safeguarding bodies. A new Deputy may be authorised to take legal action to recover the money gifted. In some cases the police may be asked to investigate.
What should I do if I have already made an unauthorised gift?
If you have concerns that you may have made an unauthorised gift , it is important that you get legal advice. Deputies should keep a record of any gifts made and the circumstances of such, so that they are in a position to give an account to the Office of the Public Guardian if asked.
Our experienced solicitors can apply for retrospective approval from the Court of Protection or advise you how to proceed with peace of mind.
For friendly advice and guidance, contact our Court of Protection team on 0800 042 0700 or email firstname.lastname@example.orgMeet the Court of Protection team