Giving gifts as a Deputy

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:

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.
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.
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.
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.