Can I make a gift as an attorney?
Being a loved-one’s attorney or deputy (“Attorney”) appears to be an onerous task at times. Attorneys usually act on the basis of a Lasting Power of Attorney or under a court order as deputies. Acting in the best interest of the donor is the most important consideration an Attorney should have.
Can making a gift on behalf of the donor be in their best interest?
Yes, an Attorney can make a gift from the donor’s estate but strict rules apply:
- The donor must not have the mental capacity to make the gift themselves.
- The gift must be to a connected person such as a close relative or a charity the donor cared about.
- Most commonly, gifts are modest in value and for customary occasions such as birthdays and weddings. But they may not have to be. In any case, the gift should be reasonable in size in relation to the extent of the donor’s estate. The Attorney should also consider what could be reasonably expected of the donor in the particular circumstances.
What value is reasonable?
As an Attorney, you should certainly seek approval from the Court of Protection of a gift of real property. However, sentimental value gifts should be considered reasonable as long as they comply with the above three conditions.
Making a cash gift of a substantial value from the donor’s estate should be measured very carefully. Consider if the value of the gift is reasonable and also, if it is made to a person the donor would like to benefit had they had the mental capacity.
Please contact James Hadley or Jakub Kotan from our Private Client Department for further advice. Also see OPG’s practice note for details: https://www.gov.uk/government/news/opg-updates-legal-guidance-on-giving-gifts