This is a question we are asked regularly by people who have been appointed as Attorneys under an Enduring Power of Attorney, or Lasting Power of Attorney and who are looking for some guidance on their role and responsibilities.
It can be a complex area and cause confusion, so here we hope to give some clarity on what you can and cannot do in terms of making gifts from the Donor’s money.
Can I make a gift to the Donor?
The Donor is the person who has made the Power of Attorney.
Buying things, or paying for services, for them is not “gifting” it is simply using their own money for their own benefit and this is 100% what you should be doing as their Attorney.
Provided that the purchase is in the best interests of the Donor, there are no restrictions on the amount of this type of spending.
Can I make a gift to family members?
There are fixed rules around gifts to family members and these are set out at section 12 of the Mental Capacity Act 2005.
This legislation gives details of the few limited occasions on which you may make gifts to family members on the Donor’s behalf. These are:
- Birthday
- Marriage
- Civil Partnership
- Other occasion on which presents are customarily given within families. This may include for instance religious festivals.
On these occasions, you can only make gifts which are considered “reasonable” in the circumstances and in particular, reasonable in relation to the Donor’s estate. This means that if someone’s assets are in the millions, then a larger gift would be permitted than if their assets were in the thousands.
Can I make gifts to myself?
Attorneys can make gifts to themselves on the occasions set out above, but be wary of doing this – your decision to do so might be challenged. As an Attorney, you must make sure that you are always doing what is best for the Donor and be able to justify your decisions and actions to the Office of the Public Guardian at any time.
No other gifts to an Attorney are permitted. For instance, you cannot under any circumstances transfer the Donor’s house to yourself, even if this is something that they suggested themselves before they lost capacity.
If you are in any doubt about whether a gift to yourself is appropriate you can seek a one-off decision from the Court of Protection about this.
Can I make gifts to charity?
Yes. If the Donor had a habit of donating to charity regularly – e.g. via a monthly direct debit, by annual sponsorship of an event (such as Race for Life) or weekly at church services – then you are permitted to continue these donations on the Donor’s behalf.
Again, you must ensure that the gifts being made are reasonable.
What is a reasonable gift?
The amount of the gift on any of the permitted occasions must be reasonable in view of the Donor’s estate at the time the gift is made.
This means that just because 10 years ago they were able to gift £1,000 every month to family and charities, it doesn’t mean they will be able to do so now. You must therefore consider the Donor’s financial position every time you make a gift to anyone, regardless of what the Donor may have done in the past.
You cannot simply continue with the same gift as the Donor used to make without any further thought.
What if my Co-Attorney is making gifts I don’t agree with?
If you are appointed with another person to act as Attorneys on a joint and several basis, then your co-Attorney is able to make decisions without your input or agreement.
If you are worried that your co-Attorney is making gifts that are not reasonable, not in line with the Mental Capacity Act 2005’s rules or which are of concern in any way then your first step should be:
Either speak to your co-Attorney if you are comfortable doing so, to explain why you’re concerned. Communication is key and it may be that they were not aware that they were doing anything wrong and a simple chat can sort it all out.
Or, if you feel unable to have a conversation with your co-Attorney about your concerns, or you have done so and it has not been helpful, then contact the Office of the Public Guardian on 0300 456 0300 and ask them for some general guidance on how to deal with the situation. You can do this without formally reporting things to them, or giving them any details of the Donor, yourself or your co-Attorney.
If you remain concerned after doing this, then you can formally report your concerns to the Office of the Public Guardian by completing their form at (www.gov.uk/guidance/report-a-concern) or calling the same number quoted above and they will consider and investigate your concerns.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
