When someone is appointed as a Deputy by the Court of Protection, they are given the responsibility of making decisions for a person (P) who cannot make decisions for themselves. A key area of focus is giving gifts, and deputies must understand the legal rules and limits around this.

What is a “gift”?

The Office of the Public Guardian (OPG) considers gifting to cover a wide range of circumstances. As well as the traditional understanding of a gift, this includes:

  • An interest-free loan from P’s funds
  • Selling a property for less than its true value
  • Living rent-free or at a ‘family and friends’ rate in P’s property.

There are lots of other decisions which may fall under the OPG’s definition of a gift.

Key Guidelines for Deputies:

The general rule is that Deputies are not allowed to make gifts from P’s estate, although a Deputyship Order will typically include a provision allowing gifts if:

  • Made on a customary occasion to a person related or connected with P.
  • A gift to a charity which P might have been expected to make.
  • The value of the gift is not unreasonable.

What is a reasonable gift?

To determine what is a “reasonable gift,” you must carefully assess P’s finances. Gifts should not affect their ability to pay for future care and must be affordable. The amount should reflect what P would have given before losing capacity, though this may vary for each individual.

If a gift exceeds these limits, the attorney must seek approval from the Court of Protection before proceeding.

Approval from the Court of Protection

In certain situations, deputies must seek prior approval from the Court of Protection before making substantial gifts or gifting above a certain value. This is particularly important when the gifts may significantly impact P’s estate or affect their ability to pay for care needs in the future.

What happens if a Deputy gives a gift without proper authority?

If you give a large gift to someone or use P’s money for your own gift, several things could happen:

  • The Office of Public Guardian (OPG) may investigate.
  • You may be asked to repay the money or return the gift.
  • The Court of Protection may be asked to approve the gift after the fact.
  • You could be removed as Deputy.
  • You may be required to cover any costs incurred.

Practical Steps for Deputies When Gifting

If you are a Deputy responsible for managing the finances of someone who lacks capacity, we would always advise you to:

  1. Review the Individual’s Preferences: If possible, consider the person’s past gifting behaviour. Would they typically make such gifts? Is there a family tradition of gifting for special occasions? This helps ensure that gifts are consistent with their values and preferences.
  2. Document Everything: Keep detailed records of any gifts made, including the rationale for the gift, the recipient, and the amount. This will help you demonstrate that the gifting is in the person’s best interests if the decision is ever questioned.
  3. Seek Court Approval When Necessary: If you are considering making a substantial gift, especially one that could impact the person’s ability to pay for care, it is essential to seek prior approval from the Court of Protection. This will protect you from any future challenges.
  4. Be Transparent: If questioned, you should be able to provide a clear and reasoned explanation of why the gift was made and how it benefits the individual. Always act in the person’s best interests and avoid any appearance of self-interest.

As a Deputy, it’s important to act in the person’s best interests and follow legal rules on gifting to protect both the individual and yourself from potential legal issues.

If you are a Deputy who would like advice on gifting, please do not hesitate to contact our Deputyship Team.

I read the recent BBC news article about a professional Attorney accused of mishandling his clients’ finances.  As part of a team that specializes in Attorney Affairs who understand the level of trust our clients and their loved ones place in us and our work, I was extremely disheartened. It is a privilege to be able to help and guide clients and attorneys alike through a time that can be daunting and deeply emotive for all involved.

Attorneys must always act in the Donor’s (the person granting power to an Attorney) best interests at all times, regardless of whether the Donor does or does not have capacity. Until proved otherwise, the assumption should always be that the Donor retains capacity, and therefore autonomy to make decisions in relation to their property, their finances, their care and their health.

As there is no mention in the article of either of the clients mentioned having lost capacity, I will assume that they each retained capacity and so should have, at the very least been consulted in relation to any decisions being made of their behalf. The Mental Capacity Act (MCA) 2005 states that any person making decisions, such as under scope of a Power of Attorney, “must, so far as reasonably practicable, permit and encourage the person to participate, or to improve their ability to participate as fully as possible in any act done for them”.

If someone thinking about preparing a Lasting Power of Attorney is considering appointing a professional Attorney, there are some steps they can take to protect themselves and be confident in who they are appointing:-

  • Read testimonials – legal professionals will usually have their own profiles on their company’s website where they can display testimonials from clients.
  • Research your lawyer – as well as client testimonials, if a legal professional holds a membership with The Association of Lifetime Lawyers (ALL) or the Society of Trust and Estate Practitioners (STEP), this should also be noted on their profile. Both the ALL and STEP hold their members to a high standard of professionalism, so having either of these memberships is a good sign that the legal professional, knows their obligations, has undertaken to uphold certain standard and provide a great service to their clients.
  • Ask for recommendations – a family member, a friend or a colleague might be able to recommend a legal professional that they have had a positive first hand experience with, or know of someone who can.

It is the responsibility of everyone working with vulnerable people to put that person first and behave beyond reproach and for every person working for a regulated law firm to uphold public trust and confidence in the legal profession.  It is a great shame to read stories such as this where that appears not to have happened, but I am, however, confident that this gentleman is an exception and not representative of the profession as a whole.

We at Mayo Wynne Baxter pride ourselves on our professionalism, and always have the best interests of our clients at the heart of what we do. We take the time to get to know our clients, their needs and their wishes so that we can continue to do right by them, and so they can rest assured that they are in safe hands.

Please do not hesitate to contact our specialist Attorneys Affairs Team if you have any questions or concerns; we are always happy to help.

Tel: 01273 477071

Email: trowden@mayowynnebaxter.co.uk / adodsworth@mayowynnebaxter.co.uk

We understand that the decision to end a marriage is one of the hardest a couple will face and it is not made easier by the prospect of having to ‘go to battle’ with one another in the Family Court. Not to mention the added fuel of congested court lists which means for considerable delays for hearings to be listed.

There are options available to our clients who are hoping to agree matters as efficiently as possible, one of them is considering attending a Private Financial Dispute Resolution Hearing, or ‘PFDR’. So, what is a PFDR and how can it help?

What happens at a private FDR hearing?

A private FDR is the equivalent to the Second Hearing in financial remedy proceedings, albeit out of the court system. At the Second Hearing and in a private FDR, a Judge will hear the submissions of both parties or their legal representatives and provide a likely outcome if the parties were to go to a final hearing. The Judge, therefore, does not impose an agreement but rather it is a means to assist with the negotiations of the parties. If, after the Judge has made an indication, one or both parties are unhappy, further negotiations can be made with their respective solicitors and revised offers can be proposed. If an agreement is not reached and a settlement cannot be agreed and formalised after the private hearing, the FDR will move to the court’s Final Hearing where the Judge will make a legally binding order.

What are the benefits?

  • Speed – Often due to court congestions, hearings can take up to several months to be seen in front of a judge however, the private hearing can be booked on a date of convenience and at a short notice (dependent on judge’s availability).
  • Privacy and comfort – it offers more privacy as the venue can be far more discreet than a busy court building.
  • Financial specialist judge – The judge will be a financial specialist (as opposed to judges at court who may be better versed in children matters). They will have read the papers and will have plenty of time to see you when you require their input, which is often not the case in court.
  • Better chance of settlement – Statistics show that around 80% of cases settle just after FDR/ private FDR stage.
  • On your terms – If successful, being able to agree an outcome is in general far preferable to having one imposed on you.

What’s the catch?

No catch, however, there will be a cost of hiring a Judge privately which will not be due if matters were dealt with at court. It is the decision of the parties involved as to how this payment is divided.

How can we help?

We understand that there is no ‘one size fits all’ approach on what is suitable for our clients. We are able to advise as to if a PFDR will be most suitable in your case. We are guided by our clients’ needs and preferences and will make sure that you understand the process and feel supported throughout.

If you need any assistance with a Family Law matter, please do not hesitate to contact our experienced Family Team at Mayo Wynne Baxter on 0800 84 94 101. Our specialist team can advise you as to the best possible ways to resolve matters