Our Expert Lasting Power of Attorney Solicitors Discuss: Can I make gifts using a Lasting Power of Attorney?
Posted on 28th May 2021
Our Lasting Power of Attorney Solicitors discuss making monetary gifts as an Attorney for a loved one. Read our expert team’s blog to find out more.
When you are appointed as your loved one’s attorney under a Lasting or Enduring Power of Attorney, you may be wondering whether you can make gifts on their behalf. Our expert local Lasting Power of Attorney Solicitors discuss making gifts as an attorney, and what matters you should think about before doing so.
When trying to decide whether or not to make a gift on behalf of the Donor (the person who makes the Lasting Power of Attorney appointing you as their attorney), you need to be aware of the strict rules around gift-making. To start, you must always act in the Donor’s best interests and therefore this principle must be at the forefront of any decisions that you make about giving a gift. What else do you need to consider? Our Lasting Power of Attorney Solicitors answer some more questions below:
What is classed as a gift?
In terms of a Lasting Power of Attorney, a gift is when you, as the attorney, move legal ownership of money, property or personal possessions from the Donor to someone else, including yourself. If you make payment of the full value of the item in return, this would not be a gift, but a purchase of the Donor’s asset.
Examples of a gift could be:
- Selling the Donor’s property at an undervalue (for less than what it is worth)
- Making an interest-free loan (the interest that should be charged being the gift)
- Using a Deed of Variation to give up the Donor’s entitlement under someone else’s
- a lump sum of money
- the Donor’s car
How can I legally make gifts from the Donor’s funds?
If the Donor no longer has capacity, with certain types of gifts, such as selling the Donor’s property at an undervalue, you may need to make an application to the Court of Protection to authorise such a gift being made. If the Donor has capacity and they wish to make the gift, both parties may wish to receive independent legal advice, and sign an agreement confirming the gift to be made and the agreement reached.
How can I prove that the Donor has capacity to make a gift?
In order to authorise a gift themselves, the Donor must have capacity. This means that they should really be able to make the gift themselves. If they have capacity themselves, to avoid any problems in the future, the Office of the Public Guardian advises that the Donor should make the gift themselves.
You can find out more about capacity and how to assess this in the Office of the Public Guardian’s guide, here, or seek legal advice from a professional.
Can I accept a gift from the Donor as their Attorney?
As an attorney, you should not take advantage of your position. The general rule is that you must not receive a gift from the Donor’s estate. However, gifts that satisfy all three of the following can be exempt from the general rule:
1. Gifts can be given on customary occasions, such as weddings, birthdays, births, Christmas, Eid, Diwali, Hanukkah, etc.
2. Gifts made to someone related or connected to the Donor or to a charity they supported.
3. Gifts must be of a reasonable value, taking into account the size of the Donor’s estate and their means to live comfortably without that money. Before making a gift to yourself or another person under a Lasting Power of Attorney you should seek expert legal advice from Lasting Power of Attorney solicitors near you.
Can MG Legal, Solicitors near me, help?
Our expert Lasting Power of Attorney “Solicitors near me” can assist with the making and registration of Lasting Powers of Attorney. Contact our expert team online, here, or email firstname.lastname@example.org for more information
To discuss making a gift as an attorney, contact our expert team who will be happy to have a chat with you about your matter.
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