Giving gifts for a person who lacks capacity

Where a deputy is appointed on behalf of a person who lacks mental capacity to manage their own property and financial affairs, there are bound to come times at which thoughts turn to making gifts on their behalf.  There are some important principles to bear in mind about gifting and this article aims to explain some of these.

The starting point is to consider the powers given to the deputy in the order appointing them.  It is very common for a deputyship order to provide authority to make gifts “on customary occasions”, provided that the value of the gift is not unreasonable, having regard to all the circumstances.  If the order appointing the deputy does not contain this provision, it would be necessary to apply to the Court of Protection for specific authority to make a gift.

What needs to be considered when giving gifts on behalf of protected parties?

If the deputy already has authority to make gifts, there is still a need to think carefully about the proposed gift.  The overriding question that needs to be considered is what is reasonable.  This will depend on all the circumstances that are unique to every case.  Things to consider include the nature of the gift, the wishes and feelings of the person who is giving the gift and of course the value of the gift itself.

A gift can take many forms.  It could be a birthday present for a family member or friend.  It could be an anniversary gift, or a gift as part of a religious celebration such as Christmas, Eid, Hannukah or Diwali.  A gift may not necessarily be a single tangible thing.  It could be paying for somebody to share a holiday, a donation to a charity or perhaps even selling a property at a discounted rate to a family member.  A gift may be ongoing, for example if it is proposed to let somebody live in a property that the person owns, at low or no rent.

It is important to consider whether the person has mental capacity to make a gifting decision for themselves.  Deputies are under a duty to help the person to make decisions on their own behalf.  Where a person has capacity to make a decision, that decision is theirs to make, whether or not others think it is an unwise decision.  However, in many cases, the person making the gift will not have capacity to make the gifting decision and so this would fall to the deputy.  Where this is the case, it is important to consider the wishes and feelings of the person making the gift as well as their circumstances, including their financial circumstances.  In terms of wishes and feelings, the person may be able to express wishes in the here and now, or they may not.  If they cannot express a wish, it is important to think about whether their likely wishes could be assumed through the decisions they took when they had capacity.  For example, if a person had previously made donations to a preferred charity, it could be reasonable to assume that they might want to continue to support that charity if they had sufficient funds to be able to do so.

What is considered an acceptable gift to make as a deputy?

Generally speaking, the lower the value of the gift and the more affordable it is, the less controversial it is likely to be.  For example, a financially comfortable person whose needs are catered for might reasonably be expected to buy presents for family birthdays.  Where these gifts are not extravagant and do not deprive the person of funds that would otherwise be required to provide for their needs, a deputy might find it easy to arrive at a best interests decision allowing the gift to be made.  However, things might become more complicated and require a lot more thought if the gift is extravagant, expensive or unusual in nature.

As with so many decisions that are taken by deputies, there may often be no obvious right or wrong answer.  There may be competing factors that could pull the deputy in different directions and make it difficult to identify what is in the person’s best interests.  In some situations, especially where a gift is unusual or extravagant, the best course of action would be to apply to the Court of Protection so that a judge can make the decision.  An application would certainly be required by a deputy if the order appointing them did not give them authority to make gifts.  Applications can also be used to seek retrospective authority for a gift that has already been given, though it is always preferable for the Court of Protection to be involved before, rather than after.

Here at Price Slater Gawne, we have a wealth of experience in this area and are able to support lay deputies with advice and, if necessary, in making applications for gifting authority.  If this is an issue that has arisen, or is likely to arise in your deputyship, our lawyers will be pleased to speak to you about your needs and the options that are open to you.

If you would like to speak to a member of the team, please contact Tom Young on 07507 875558, Jade Price on 07930 519947 or Sam Firth on 07508 897860, by email to cop@psg-law.co.uk or via our live chat facility at www.psg-law.co.uk