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What Are The Rules For Gifting By Powers of Attorneys?

Posted: Friday, 4 January 2019 @ 13:43

This  recent practice note gives detailed guidance on how deputies and attorneys should approach giving gifts on behalf of the person they act for (often called ‘the person’ in this practice note). The note explains the legal framework to gifting and the approach the Office of the Public Guardian (OPG) takes when deputies or attorneys go beyond their authority to give gifts.

What is the general rules about gifts?

The general rule for deputies and attorneys about giving gifts is simple: apart from some exceptions, the law says you must not make gifts from the person’s estate.

For attorneys acting under a registered property and financial affairs LPA, these exceptions are set out in section 12(2) of the act.

Specifically to count as an exception, the gift must satisfy all three points below.

It must be:  

1 given on a customary occasion for making gifts within families or among friends and associates (for example, births, birthdays, weddings or civil partnerships, Christmas, Eid, Diwali, Hanukkah and Chinese new year)

2 To someone related or connected to the person or (if not a person) to a charity the person supported or might have supported

3 Be of reasonable value, taking into account the circumstances in each case and, in particular, the size of the person’s estate.

This gives more of a structure to those seeking to attack the conduct of attorneys. I have come across quite a few attorneys who have not played by these rules.