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Can I make gifts as an attorney?

Of course you can if you pay for them! You can make as many gifts as you like. If however you are acting as an attorney the answer to this question is as long as you act within your powers.

When looking as gifting as an attorney we are considering things like charitable donations, interest free loans, putting properties in trust, rent free living, paying for school fees or large payments of money.

If the donor (the person who has made the lasting power of attorney under which you act) is capacity of deciding whether to make a gift you do not need to be involved. If, however, there is an issue with the donor's capacity you will need to consult the donor to see whether they have capacity to make the gift.

Under the rules an attorney can:-

  1. make a customary gift ie weddings, anniversaries, birthdays, graduations, Christmas, Eid, Hannukkah

  2. make donations to charity

These gifts must be reasonable in relation to the size of the donor's estate and must not impact upon their ability to pay for care for the remainder of their lifetime. It is considered no more than £250 for these gifts is a reasonable amount.

If, as attorney you want to make a gift which is larger than this you will need to make an application to the Court of Protection for authorisation to proceed. This does not mean that the Court will refuse. It will look on the evidence presented and decide if it is in the best interests of the donor. You should also look to make an application to the Court of Protection if you are looking at making a gift to yourself because you have a conflict on interest as attorney.

If you think you have made a gift which is outside your powers you should notify the Court of Protection as soon as possible. The Court will investigate what you have done. You may be asked to refund the gifts to the donor or provide you with retrospective approval for what you have done. In the most serious of cases you could be removed as an attorney.

Many people take on the role of attorney without fully understand the implications and responsibilities they take on. Rather than get in a muddle or trouble with your actions why not see advice about what you can and cannot do. That's what we are here to hep with!


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