Court of Appeal Sets Aside Financial Remedy Order
The Court of Appeal has upheld a man’s argument that the financial remedy order made on his divorce should have been set aside because the wife had given inaccurate evidence...
Continue readingAttorneys and Deputies have significant power to deal with the Donor’s finances.
They can make gifts on behalf of the Donor provided there are no restrictions contained within the LPA or Deputyship Order to that stop them from doing this. However, gifts can only be made to people who are related to or connected with the Donor on customary occasions such as birthdays, wedding or civil partnership anniversaries, or any other occasion such as Christmas or Diwali when they would have usually given gifts to family or friends. The Court of Protection suggests appropriate amounts are the one-off £3,000 annual gift and the £250 small gift per person, as specified in the inheritance tax legislation.
The value of any gift must be reasonable compared to everything that the Donor owns (the Donor’s estate). The reasonableness of a gift must be considered and the first and paramount consideration must be whether the gift is in the Donor’s best interests as well as:
To make larger gifts, say for inheritance tax planning purposes or gifts that are not considered customary, you will need to make an application to the Court of Protection. Details of how to apply to the Court of Protection are available from the Office of the Public Guardian and we can advise and assist you with such an application.
Additionally, if the Donor used to regularly give to a charity, the attorney/deputy may continue to do this on behalf of the Donor. Again, the value of any donation to a charity must be reasonable compared to everything that the Donor owns.
An application to give permission for the gift must be made to the Court of Protection under s23 of the Mental Capacity Act 2005 in any of the following cases :
Attorneys and Deputies should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. At least, attorneys should be aware of the “Information you must Read” on the LPA form and ideally, deputies and attorneys need to be familiar with the requirements of Code of Practice set out in the Mental Capacity Act 2005. In several recent cases, the Court of Protection has ordered attorneys to repay money to the Donor, as a personal liability when they have acted beyond their powers in making disproportionately large gifts to themselves, their family members and charities previously supported by the Donor, without the permission of the Court.
If you have any queries about your role as an attorney/deputy, please speak to us, especially if you are considering making large gifts or donations from the Donor’s money. Better to be safe after sound legal advice, than sorry!
Our experienced private client team would be delighted to assist you. Please call either Mrs Outi Hubbard, Sarah Ellis on 020 8735 9770.
Search site
Contact our office
Get in touch