Doing the right thing – making gifts as an attorney or deputy
Acting as an attorney or a deputy for a loved one can bring with it some very difficult decision-making. How do you know you are making the correct decisions for a person who is no longer able to decide for themselves? What guidance is available to support you in your role so that you do not fall foul of the rules?
The rules for attorneys and deputies differ, but they follow a similar pattern. The extent of a deputy’s power is determined by court order, while attorneys are authorised under a power of attorney that usually gives them general authority to act as they see fit.
However, it can be very easy unwittingly to exceed your authority, which could compromise your appointment to the extent that you could be discharged from your responsibilities. An example of this could relate to the approach you might take when making a gift on behalf of a person who is neither able to do so nor able to convey their wishes or feelings.
The Office of the Public Guardian has issued general guidance that applies to attorneys and deputies when gifting from a person’s assets. The value of the gift must be ‘reasonable’ and ‘proportionate’ to the person’s estate, and may replicate past gifts made by that person during their lifetime. You should consider the person’s income and capital as well as the likely level of their expenditure now and in the future including whether they are likely to require future residential care. The gift must only be made to recipients related to or connected with the person, or perhaps a charity that the person supports. Finally, the gift must be given on a customary occasion, such as a birthday, wedding or at Christmas.
Outside these general rules you will need to apply to the court for approval and, for an application to succeed, you will be required to produce evidence that the gift is in the person’s best interest. If an attorney or deputy makes a large unauthorised gift ignoring the rules the Public Guardian may refer the matter to the police for investigation so, if you are unsure about any aspect of your role, it is wise to seek professional legal advice.
Stephen Shine. Chartered Legal Executive. Private Client department
General, George Ide, News, Wills and Probate