New guidance on gifts by attorneys

Lindsey Sharples Cropped

By Lindsey Sharples

The Office of the Public Guardian in England and Wales has issued new guidance for deputies and attorneys who are considering making gifts on behalf of a donor/patient.

Deciding whether to give a gift can be an important part of being a deputy or attorney. Gifts can help to preserve the relationships with the family and friends of the person whose finances you are helping to look after. However, you need to be aware of the strict limits on gift-giving on behalf of someone else.

There is often confusion about what constitutes a gift – it is not just using a person’s money to buy something for someone else on their birthday or giving the person’s money or possessions to another person. Gift giving can also include:

  • Donations to charities;
  • Paying someone else’s school or university fees;
  • Living rent free or at a ‘friends and family’ rate in a property belonging to the person;
  • Selling the person’s home to someone at less than market value;

The starting point is that the person whose money and property you are looking after should decide whether to give a gift – if they have mental capacity. Only when you are sure that the person can’t make their own decision about gifts, can you decide for them. If you believe it is in their best interests to make gifts, think about (amongst other factors) their current needs – just because someone used to make generous gifts, can they afford to now?

Unless the power of attorney says otherwise, you can make a gift only if it’s either to a family member, friend or acquaintance of the person on a ‘customary occasion’ such as their birthday or to a charity. In both cases it is essential that the gift is of reasonable value given the size of the person’s estate.

Deputies and attorneys cannot give the person’s property away as gifts, or spend their money on gifts, to avoid contributing to care home costs. The law calls this ‘deprivation of assets’.

Lindsey Sharples is a solicitor in the private client team at Barker Gotelee, Solicitors in Ipswich.

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