The Office of the Public Guardian has issued new information regarding gift making as a Deputy. It can be found here : https://publicguardian.blog.gov.uk/2020/12/16/giving-gifts-as-an-attorney-or-deputy/
As Deputy it can be tricky deciding whether to give a gift to a friend or relative of a Protected Party. It is not compulsory to give a gift unless a Court Order states otherwise. When giving a gift, the key decision is whether it is in the best interests of the Protected Party.
What is a gift?
A gift can include various options such as giving donations to charities, living rent free, giving an interest free loan or simply the purchase of a bunch of flowers.
Who can give gifts?
Under the Mental Capacity Act, the Protected Party should always be consulted before decisions are made and included as much as possible.
If you consider that the person has capacity to make a gifting decision, you should keep a record of the steps you took to make sure they did. The Office of the Public Guardian may ask you at any stage to explain your decision, or others could challenge you later.
Even if the person apparently has capacity to make a gift, you must still use care and caution when they express a desire to make one. If a substantial gift is involved, you may need to seek advice, obtain an Order from the Court or arrange for a mental capacity assessment.
When can Deputies give gifts?
Gifts can be made on special occasions such as weddings, anniversaries, birthdays, graduations, and civil partnerships. This also includes the giving of gifts on religious occasions.
What is considered a ‘reasonable gift’?
A reasonable gift will largely depend on the Protected Party’s finances. Any gifts given should not impact on their ability to pay for care for the rest of their life and should be affordable.
What happens if a gift is given without authority?
If a substantial gift is given without authority, the Office of the Public Guardian may investigate and ask that the money is paid back or that the gifts are returned, approval could be required from the Court of Protection or the worst case scenario would include the removal of the Deputy position.
For more information please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.
