With Christmas Day less than seven days away, thoughts invariably turn to the presents waiting beneath the Christmas tree.
It is natural at this time of year that attorneys and deputies managing the affairs of protected people might be thinking about making gifts on their behalf. Attorneys acting for an elderly person may wish to authorise Christmas presents for the protected person’s grandchildren, for example.
Both attorneys and deputies, that is to say, people with authorisation to manage someone’s affairs either through an LPA or a court appointment, have significant powers of managing a protected person’s property and finances. The decision as to whether to gift the protected person’s money has been the focus of many cases before the Court of Protection. Whilst many cases involve clear acts of deliberate financial abuse, it is possible for even the most well-intentioned attorney or deputy to find himself in trouble, if it can be demonstrated that the gift they authorised falls outside the relevant legal boundaries.
The starting point is that attorneys are not allowed to make gifts from a protected person’s estate “except on customary occasions”, to “someone related or connected to the person”, of “not unreasonable value”.
The Office of the Public Guardian has published a guidance note for deputies and attorneys on how best to exercise their powers in relation to gift giving. For the full guide, please visit https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/681929/Giving-gifts-practice-note-PN7.pdf.
When considering whether to authorise gifts, please remember that attorneys and deputies do not have unrestricted decision making authority. Any decision made by attorneys, including deciding whether to give seasonal gifts on the protected person’s behalf, must be in the person’s best interests. It is also important to consider whether the person is able to take any active part in the decision making process, or even have the capacity to understand the reasoning behind the proposed gifts.
A reasonable and practical starting point when considering gifts would be to look back and determine the typical value of the gifts the protected person made when he or she still had capacity, and to make sure that the value of the proposed gifts does not exceed this. Another very relevant consideration is whether, after making the proposed gifts, the protected person would still have sufficient funds for their own needs.
Although there is no rule against attorneys or deputies authorising gifts for themselves (provided, of course, that they are related to or connected with the protected person!), caution should still be exercised. Nobody wants to be accused of taking advantage of the position to which they have been appointed.
If a deputy or attorney is suspected of making any unauthorised gifts, they can be investigated by the OPG, or even the police.
If you are a deputy or attorney affected by any of these issues, please contact our specialist team today on 0161 615 5554 or by email to firstname.lastname@example.org.