A person who lacks the necessary capacity to manage their financial affairs may also lack the capacity to make gifts. In certain circumstances the Court of Protection will approve such actions on behalf of the incapacitated person.
Deputies appointed by the Court of Protection have limited powers to make gifts from the property of the incapacitated person.
At the time of writing, the Office of the Public Guardian provides guidelines as to when such gifts might be acceptable and outlines the need to obtain permission from the Court of Protection to give gifts unless you can answer ‘yes’ to all 3 of the below questions:
• Is the gift to someone related to, or connected with, the person – or to a charity they might normally have given to?
• If the gift is to a person, is it being made on a customary occasion?
• Is the gift of reasonable value, given the size of the person’s estate and their expected future needs?
Giving a gift beyond your authority could prompt the OPG to launch an investigation and make you personally liable for the sum of the gifts and in serious cases - you could be removed as a deputy or attorney. (See the OPG guidance here).
Giving a gift as a Deputy
We recommend you contact our specialist Court of Protection team for advice concerning your specific situation - we can advise Deputies on all aspects of gift applications.
*Please note, as a Court appointed Deputy any reasonable costs of seeking legal advice as part of your role as Deputy will be payable out of the estate of the incapacitated person.